The twelfth chapter The discretion of punishment

The discretion of punishment penalty refers to the sentence. The provisions of the relative legal punishment of the crime of criminal law, the people's court for a specific crime, in the selection of the specific application of the provisions of the criminal law and the legal punishment, must follow the statutory principle, according to a specific case plot, decides the specific punishment or exempted from punishment. In relation to the vital interests of the defendant, the judge has the right of punishment idea and reasonable sentencing method.

The first section, the overview of sentencing

One, the concept of sentencing

The sentencing, refers to the criminal discretion of punishment. Specifically, refers to the judicial organ in ascertaining the facts of a crime, criminal nature determined based on, in accordance with the law on the punishment of criminal discretion judicial activities. Corresponding to the conviction and sentencing, is one of the two part of the trial work.

The main content punishment is the judicial organ in China,,, only by the people's court for sentencing. The basis of punishment is to find out the facts of the crime, the crime nature. Only the first conviction, sentencing, sentencing convicted after never before. The sentencing discretion of punishment is . In the premise of penalty decision, further decided what kind of punishment (penalty sentenced to choose), sentenced to multiple penalty (lack of definite punishment) and whether the immediate execution (whether reprieve). In the case committed several crimes, sentencing also includes how to punish the content.

Three, the principle of sentencing. The principle is based on the facts of the crime according to the criminal law as the criterion. This principle is the principle of adaptation specific crimes.

(a) in the criminal facts

In the criminal facts, refers to the facts of the crime, the nature of the crime, the plot and the degree of harm to society as the basis. Must do:

1To find out the facts of the crime. The facts of the crime, in accordance with the provisions of the criminal law refers to the elements of the crime of subjective and objective facts. Recognize the facts of the crime, is the first key correct sentencing, is the premise to the facts of the crime as a fundamental principle.

2 , accurately identify the nature of the crime. Refers to the nature of crime the crime, the nature of the crime constitutes a crime the subjective and objective fact unified performance. To accurately identify the nature of the crime is in fact to determine what acts constitute the crime that is committed specific crime, distinguish between this crime and other crime. To determine the nature of the crime, the criminal law can be determined shall be applicable, it selected corresponding with the nature of the crime legal punishment.

3 , comprehensive grasp of the circumstances of the crime. The circumstances of the crime, is refers to does not have the crime fact significance, but with the constitution of a crime and has close ties with the view, reflect the subjective and objective conditions and depth, thus affecting the fact the dangerous degree of harm degree of the people and social behavior of crime committed personal. Determination of the crime nature, solve only the provisions of the criminal law shall be applicable, and not completely selected legal punishment, is not equal to the results are . In the criminal nature of the same crime, the circumstances of the crime are different, so the extent of social harmfulness of the crime is not the same. To make the punishment and the severity of the crime and dangerousness of the criminal suit, it is necessary to make the penalty crime and adapt.

Surrender, from the criminal law recidivist system spirit, sentencing should consider some case outside the plot, such as performance and some personal crime, crime of post attitude etc..

4Comprehensive evaluation, social harm of crime. Social harm of crime, is determined by the facts, nature and circumstances of the crime. Are clear facts, nature and circumstances of the crime, also need a comprehensive evaluation of social harm of crime. Social harm of crime, is a comprehensive evaluation of the whole crime, it must not be understood as the result of the harm of crime.

(two) in the criminal law as the criterion

Figure out the facts of the crime, the plot, the nature and extent of harm, is not equal to the penalty must be appropriate. To achieve appropriate sentencing, must also take the criminal law as the criterion.

1Discretionary punishment must be in accordance with the provisions, the application of criminal law about criminal law authority and applicable conditions of the method.

2Must be in accordance with the criminal law about criminal law, discretion system of punishment. The provisions of the criminal law, the system of meritorious performance system, recidivism system, probation system, the combined punishment for several crimes. At the discretion of punishment, must follow the system.

3 , must be on a variety of circumstances of sentencing discretion of punishment in accordance with the applicable principle of criminal law. The provisions of the criminal law shall be given a heavier, lighter, the exemption of punishment, some of which are "should be" a lighter, mitigated punishment or be exempted from punishment, some "can be" a lighter, mitigated punishment or be exempted from punishment; the heavy, lighter, mitigated punishment or be exempted from punishment has its specific meaning. The people's court discretion of punishment in criminal law, must abide by the various provisions on Sentencing

4, must be in accordance with the statutory punishment discretion of punishment in specific provisions of criminal law. Offences which a specific provision, medical provisions which one provision of statutory sentence of standards; and then choose the kinds of punishment and the punishment punishment; even heavier, lighter, mitigated punishment, but also to the selected legal punishment for the standard.

 

The second section of sentencing

 

 

 

One, the concept of sentencing

Sentencing, is the premise to some act has constituted a crime, the people's court should consider the criminal punishment, sentencing or exempted according to the decision of various penalty.

Sentencing circumstances must be premise in some act has constituted a crime, circumstances in sentencing should be considered. Therefore, sentencing is not have the crime fact meaning, can not explain the facts of crime basic properties. If it belongs to the criminal elements of the content is to distinguish between crime and non crime, this crime and other crime facts, not of sentencing..

Such as "hidden accumulation, transfer, sale, deliberately destroyed by judicial organs, seizure, freezing the property sealed up, if the circumstances are serious, is less than three years imprisonment, criminal detention or a fine." Here the "serious" as the constitutive elements of the crime provisions, so not sentencing. Some facts, two kinds of functional elements and sentencing constitutes both crime, this is according to the specific provisions of the criminal law shall be distinguished. If harm results, for some crimes belong to constitute elements, and therefore not of sentencing; but compared to not to harm result crime, it is the circumstances of sentencing. Sentencing of the crime fact has no meaning, but with the crime subjective element has a close contact cut, for example, whether the means of cruel, result is serious and certain time-space conditions, has a close connection with the crime objective aspect; motivation is despicable, adult and juvenile, and the crime subjective aspect, main body associated.

Classification of two, sentencing

(a) classification of sentencing

The sentencing range, so it can be based on different standards from different angles on the sentencing of different classification.

There are no provisions in criminal law as the standard, can be divided into legal circumstances and circumstances. The former is expressly stipulated in the criminal law should be considered in the sentencing plot; the latter is the criminal law does not expressly provided, according to the spirit of the legislation and criminal policy, the people's court by from trial experience, consider the discretion in the sentencing plot. Legal circumstances and divided into should plot and can plot. The former is expressly stipulated in the criminal law, plot, the influence of sentencing should be lenient or strict such as recidivism; the latter refers to the provisions of the criminal law, punishment may have influence on the lenient plot (criminal law has no provisions may have severely impact on the sentencing), if not then committed. Legal circumstances can also be divided into a single work can plot and multi function plot. Influence of the former on the sentencing is only one possibility, such as recidivism only on sentencing produce heavier impact, belong to the single function plot; the latter effect on sentencing has more than two kinds of possibilities, such as an accessory to plot may produce lighter, reduced and exempted from punishment effect.

The severity of nature on the sentencing as the standard, can be divided into the lenient sentencing plot (avoid, reduce, lighter) and severe circumstances.

The relationship between crime and to plot time as the standard, can be divided into the circumstances of sentencing and the murder of the plot. The former is various plot crime process, such as the means of crime, criminal motive etc; the latter is in or after the criminal behavior before plot, such as voluntary surrender and confession. Generally speaking, in the case of plot are social harm behavior itself plot; the plot is the behavior of dangerousness plot.

(two) the statutory sentencing plot.

Legal circumstance for sentencing, referred to as the legal circumstances, including the general provisions of the criminal code of the plot and the plot of the specific provisions of criminal law.

1, shall be exempted from punishment plot: without causing damage to the discontinuance of crime.

2, may be exempted from punishment plot: (1) the lesser crime and surrender (2) illegal cultivation of mother drug plants voluntarily uproot them before harvest.

3Be given a mitigated punishment or be exempted from punishment, the plot: (1Excessive defense ()2Avoid excessive ()3The coerced offender ()4) crime after the surrender and major meritorious services.

4, be given a mitigated punishment plot: damage of discontinuance of a crime.

5Can be avoided or mitigated punishment, the plot of the crime: in foreign countries, has been received criminal punishment.

6, may waive or reduce the punishment plot: (1Significant meritorious performance ()2) forced to account for prosecution before the active to a company, enterprise, unit staff bribery. (3An individual who embezzles)5000Yuan dissatisfaction1Million yuan, after committing the crime of repentance, positive gains. (4) before prosecution active account to the national staff bribery. (5) before prosecution take account of bribery.

7, shall be given a lighter, mitigated punishment or be exempted from punishment plot: accessory.

8,, shall be given a mitigated punishment or be exempted from punishment plot: (1) a deaf mute or blind person who commits a crime. (2Preparation for a crime).

9, shall be given a lighter or mitigated punishment, the plot: full14With the age of18Years of crime.

10, may be given a lighter or mitigated punishment plot: (1) mental patient who has not completely lost the ability to recognize or control his own conduct crime. (2Attempted offense ()3) the instigated person does not commit the instigated crime, the instigator. (4Surrender oneself.5) has performed meritorious service.

11Shall not be sentenced to death, the plot: at the time the crime is committed18A person under the age of pregnant women and the time of trial.

12, shall be given a heavier punishment plot: (1The dissatisfied)18A person under the age of crime (2Recidivism ()3) instigated, stress, seduce, buy the state organs, armed forces, the people's police, militia to carry out armed rebellion or armed riots (4) and overseas institutions, organizations, individuals collude commit (5) master state secrets commits the escape. (6Armed smuggling). (7The cause of State-Owned Company, enterprise personnel), play favouritism and commit irregularities committed (8) currency counterfeiting and sells or transports counterfeit currency. (9) the bank or other financial institution personnel who take advantage of their office, steal, buy or illegally providing credit card information (the confidence of others10The carnal knowledge of a child). (11Child molestation ()12) illegal deprivation of liberty with beatings, insults the plot. (13) state functionary crime (14) workers of state organs committing the crime of false accusation (15) judicial functionary crime of illegal searches or breach of privilege of crime of housebreaking.

(16) torture to extract confessions or force to extract testimony cause disability, death. (17) abuse person held in custody to cause disability, death (18) postal personnel private buildings, destroying, mail, Telegraph and steal property. (19Posing as police try every trick to mislead the public (of)20) allure minors to participate in the activities of group licentiousness.

(21Judicial work personnel) witness from giving testimony, instigate others to commit perjury or help destroy or falsify evidence, the.

(22) logging, deforestation in National Nature Reserve of forest or other trees (23) use, instigate minors smuggling, trafficking, transporting, manufacturing drugs or selling drugs to minors. (24) smuggling personnel or other national staff, the cover shields offenders engaged in smuggling, trafficking, transporting, manufacturing of narcotic drugs. (25Lure, instigate), cheat or forcing minors into taking, injection drug users (26For smuggling, trafficking, transporting), manufacturing, the crime of illegal possession of drugs was sentenced to punishment, the implementation of drug crime. (27) is mainly responsible for the hotel industry, catering industry, culture and entertainment industry, car rental industry and other units of the units, organizations, forced, lure conditions, shelter, introducing others into prostitution.

(28Making, duplicating obscene) film, video, audio and video products organization played (29To dissatisfied)18Minors under the age of (of spreading obscene articles30The wartime destruction) weapons and equipment, military facilities, military communication. (31) appropriated for disaster relief, rescue, flood prevention, special care, poverty, immigration, relief funds and materials for personal use. (32Bribery ()33The wartime military) hinder the execution of his duty (34Forged, altered) issued by the customs declaration and other certificates and documents, and used to purchase foreign exchange.

("concerning the sale of foreign exchange, evasion and illegal trading in foreign exchange crime decision" article1Article2Paragraph: (35) customs, State Administration of foreign exchange and financial institutions engaged in foreign trade business, The Mobility Company, enterprise or other unit personnel to purchase foreign exchange or evasion of foreign people seek, provide relevant forex purchase certificates or other convenience, or use forged, altered certificates and documents, payment and settlement.

(three) the discretionary circumstances of sentencing.

Discretionary circumstances of sentencing, referred to as discretionary circumstances, although it is not expressly stipulated in the criminal law on sentencing plot, but still played an important role. According to the judicial practice, common circumstances mainly have the following several kinds:

1, the means of crime. Specific means of crime (behavior) content, not of sentencing; therefore, this crime means that does not belong to the elements content means. The means of crime cruel, cunning, harm degree directly that crime, thus influence the sentencing. If the damage is cruel means, it has effect on sentencing.

2, temporal and environmental conditions of crime.

3The object of crime. In the criminal law has no provisions for specific object elements of the case, specific differences between the object of crime, social harm behavior, so it is need to consider when sentencing plot. For example, disaster relief, rescue and harmfulness of theft is harmful to the general public or private property theft, the sentence should be treated differently.

4The harm, harm result.

5The motive for the crime.

6After the crime, attitude.

7Criminals, consistent performance. The consistent performance of criminals is not convict, also is not based on sentencing, but has close contacting with the crime, should be taken into account is the sentence, because the degree of danger such factors also reflect the behavior of people.

8, record. Record is subjected to criminal punishment according to law fact. In accordance with the law, criminal punishment and crime, the actors dangerousness is serious, should be the discretionary circumstances.

(four) the application of the circumstances of sentencing

Sentencing is appropriate or not, depends largely on the applicable for various kinds of circumstances of sentencing is not properly. Should pay attention to the following questions:

1, correctly understanding and handling the relationship between different between plot.

(1 ) correct processing legal should plot, plot to plot and discretionary. The status and role of the three is descending: Provisions shall plot is a hard and fast rules, the judges have to comply with the provisions Wu Yi; can plot is an authorized provision, judges have the right according to the specific circumstances of the case, decide whether or not the provisions of the criminal law of the content, but the rules also shows an opinion, that is usually in circumstances, should realize penalty provisions; discretionary circumstances is the criminal law does not make any explicit, by the judges consider appropriate, specific to the plot. Legal should plot than can plot, can be Festival is better than that of discretionary circumstances.

(2) to correctly handle the relationship between plot and the murder of the plot. In the premise of belong to the legal circumstances or belong to the discretionary circumstances under, or in the circumstances of the functions in the same circumstances, in the case of the plot should be better than the plot, which is decided by the status and function of these two kinds of circumstances are.

(3 correctly treat a plurality of sentencing). A crime may have several severe circumstances, or a plurality of lenient circumstances. In this case, can not arbitrarily change the function of sentencing circumstances. For example, the crime person also has several a lighter or mitigated punishment plot, only a mitigated punishment or greatly mitigated punishment, but not exempted from punishment. Moreover, the offender shall be given a heavier punishment has several plot at the same time, also can only be punished, not can aggravate the punishment, that is not higher than the maximum statutory penalty sentenced to start. A criminal may also has the lenient and severe circumstances. In this case, we cannot adopt the allowance method, but should consider position and effect of different circumstances, are applicable to a variety of circumstances of sentencing. In practice, to put aside their sentencing consideration shall be sentenced to a punishment and the punishment, and then consider the severe circumstances of punishment and the punishment measure, and then consider the lenient punishment and penalty decision degree.

2Multi function plot, the correct application.

China's criminal law provisions lenient circumstances, the vast majority of the multifunctional plot, its core is the function which contains from a sentencing in one function, and it is applied to the specific case of sentencing.. First of all to light extent considered crimes, crimes rather slight, should choose the larger lenient function; otherwise, select the smaller liberal function. Secondly, to consider the circumstances of sentencing the situation itself. Finally, considering the provisions of the criminal law and order. The order of arrangement, reflects the tendency of the criminal legislative intent, enlightenment judges consider first arranged in front of.

3, prohibiting repeatable evaluation of sentencing.

The measurement of penalty, the burden of evaluation of various circumstances not. "There are different kinds of circumstances": the first kind is as consistent with the constitutive elements of crime facts and circumstances; second is the choice of basis as legal punishment plot; third category is the influence of specific sentencing in the established legal punishment under the circumstances. The first two kinds of circumstances play for, can no longer as the third kind of sentencing circumstances into consideration.

"Criminal law" article275The stipulates: "the deliberate destruction of public or private property, the amount is large or if the circumstances are serious, three years in the prison, criminal detention or a fine; if the amount involved is huge or other especially serious circumstances, three to seven years in prison have ." The "large amount or other serious circumstances" is the elements, so the elements of fact as guilty basis plays a role, can not be used as the repeated evaluation of sentencing; similarly, one of the "amount is huge or other especially serious circumstances" is as legal punishment according to the plot, if the behavioral person destroys public or private property amount is huge, should choose3Years or above7The legal punishment, not a huge amount of re as under certain statutory penalty sentencing; only the addition of the plot, can influence the sentencing under the established legal punishment.

"Criminal law" article274Regulation: "blackmail and impose exactions on public and private property, the amount is relatively large, punishable by imprisonment less than three years, criminal detention or control; the amount is enormous or other circumstances are serious, three to ten years in prison." If a larger amount of the starting point for the1000Yuan, a huge amount of the starting point for the1Million yuan, the act of blackmail and impose exactions on1Million yuan, the plot will be promoted according to the statutory punishment; the court under this circumstances choose3Years or above10Years in prison punishment, no longer to blackmail and impose exactions on1Million as in the statutory punishment shall be given a heavier punishment according to the in. Similarly, if the actor's blackmail and impose exactions on if the circumstances are serious, the court under this circumstances choose3Years or above10Years fixed-term legal punishment, no longer will the serious circumstances as the statutory punishment shall be given a heavier punishment according to the in. Otherwise, there will be legal punishment the same plot is promoted according to, and repeatable evaluation phenomenon in legal punishment heavier at upgraded in penalty according to the. However, the actor has two serious circumstances of the case, it can be a serious circumstances of punishment to be upgraded as a basis, will be another serious circumstances shall be given a heavier punishment in the upgraded as legal punishment according to the. This does not violate the principle of prohibiting repeatable evaluation.

Three, the recidivist

Recidivism, is sentenced to a punishment of crime, the penalty is finished or pardon, certain crimes committed within the statutory time limit condition.

(a) general recidivism

"Criminal law" article65Article1Paragraph female: "a criminal element sentenced to fixed-term sentence or more severe punishment, punishment is finished or pardon, within five years shall be sentenced to more than make a punishment of sin, is a recidivist, shall be given a heavier punishment, but negligence crime except." Conditions for establishment of general recidivism is:

1Before and after the crime, the crime must be intentional crime, if after two crime or a crime is a crime, no recidivism.

2Before, was sentenced to penalty above, after the crime should be sentenced penalty above. Only the current crime and crime is a serious crime, set up recidivist, this will be severely punished recidivism defined in the scope of serious crime.

3After the crime, the occurring time, must be imposed before the crime, penalty is executed or pardon after5Years.

(two) special recidivism

The crime of endangering national security in the penalty is finished or pardon, at any time to commit the crime of endangering national security, are to be treated as recidivists.

1,  Before and after the crime of the crime must be the crime of endangering national security.

2,  Must be a crime in penalty is finished or pardon. Because the crime of endangering national security is the most severe, the most dangerous crime, need to resolutely, severe blow.

(three) punishment to recidivist

Shall be given a heavier punishment to recidivist, this is taken attention shall be given a heavier punishment. First of all, must be severely punished for the recidivist. Secondly, in determining the heavier amplitude, in addition to considering the crime fact, after the nature, circumstances and the degree of harm to society, but also consider the relationship between crime and punishment has been completely executed or the time interval after the amnesty, crime and crime.

Four, to surrender

The penalty provisions of the surrender system is applicable to all crimes, its purpose is to encourage the offender voluntarily surrender, repent and start anew, no longer continue to commit the crime; at the same time also timely detection and judgment in favor of the case. Surrender is divided into general voluntary surrender and special surrender.

(a) general surrender

General surrender, refers to the crime after the voluntary surrender, the confession of his crime behavior. The following general surrender conditions:

1The voluntary surrender, after committing a crime. The voluntary surrender, generally refers to the facts of the crime or the criminal suspect is not the judiciary found, or were found but the suspect has not been questioned, not to take coercive measures, to direct to the public security organs, people's Procuratorate or the people's court, the legal control of oneself in the judicial organs, judicial organs and the judicial censorship the behavior of the. According to the spirit of the legislation of the surrender of the system and the relevant judicial interpretations, the following conditions shall be regarded as voluntary surrender: (1The suspect to the unit), urban and rural grassroots organizations or other responsible personnel surrendered (2The suspect due to illness, injury) or to mitigate the consequences of the crime, entrust the first generation to surrender, or to surrender letter. (3Crimes by judicial organs) not found, only because of suspicious appearance and movements, by the relevant organization or judicial examination, inquiry after the education, active confessed his crime. (4) to escape after committing a crime, wanted, in pursuit of the process, the voluntary surrender of the. (5) verified suspects have surrender, surrender or are on the way, by the judicial organ to capture (6) is not because of suspect, but by the relatives and friends, accompanied with surrender (7Judicial notice) suspect relatives and friends, or relatives voluntarily surrender, the suspects will be sent to surrender.

Criminals surrender motive, is varied, some genuine repentance, some are for leniency. Don't take reason criminals surrender as a crime to results, not for forced leniency or life motivation and deny automatic surrendered. The following conditions: (not as a surrender1The suspect confessed crimes) to surrender, and fled. (2Do not sign or name) to illegal income to the judiciary or the newspaper, magazine.

2, the confession of his crime.

Both the suspect surrendered, truthfully confessed all his crimes committed. "Substantial truthfully" is neither reduces nor expand their crimes.

In the cognizance of "confession", should pay attention to the following points: (1) commit several crimes suspects only truthful statement made part of the criminal crime number, knowledge of the confession of part of the criminal behavior, surrender. (2) in the joint crimes, as a general joint crime member of the offender, if the confession of his crime, it must be confessed their knowledge of CO crime, otherwise the "guilt" confession "faithfully" impossible; the principal in the common crime, especially the first molecular group crime of, if the confession of his crime, all the crimes must be confessed the crime, otherwise the "guilt" nor "truthfully confession". (3) and confession truthfully confessing one's crime after the suspect voluntary surrender, cannot surrender; but in a trial before they can truthfully confession, shall be deemed as a voluntary surrender. (4) due to objective factors, not all explain all the facts of the crime, but the main crime fact truthfully confesses his, also should be so confessed his crime. (5) criminal surrendered confession, appeal for their own defense,, or correction, adding some facts, should allow, can't put these acts as not truthfully confessing one's crime.

(two) the special voluntary surrender

Special voluntary surrender, also known as the standard to surrender, refers to the coercive measures of criminal suspects, defendants and is serving a sentence truthfully confessed the crime law, the judiciary has not yet mastered his other crimes act. Some people in the public security organs administrative detention, the confession of the judiciary has not yet mastered his other crimes. Although it does not belong to the coercive measures in the confession of suspect, defendant and is serving a crime, but according to the principle of legality, spirit, can also be regarded as the special voluntary surrender.

(three) the difference between voluntary surrender and confession.

Frankly, the general criminal is arrested after is passive, confessed himself was accused of the facts of the crime behavior. Voluntary surrender and confession in common: have you committed a crime is the premise; all is in the justice truthfully confessed his crimes are lenient punishment plot. Frank and the key difference lies in whether the voluntary surrender of general surrender. Frank and the key differences between the special voluntary surrender freedom to the confession of the crime has not been judicial authorities; the coercive measures of criminal suspects, defendants and is serving a sentence, the confession of the judicial organ has not grasped myself other crimes, is surrender; as is the judicial organs have I committed, is frankly. Surrender to the dangerousness of the criminal relief. For the same reason, surrender is the plot lenient punishment legally, honestly is the discretionary circumstances of sentencing.

(four) the legal consequences

Criminals surrender, may be given a lighter or mitigated punishment; wherein, the lesser crime, may be exempted from punishment. First of all, after the surrender of the crime, regardless of the severity of the crime, can be given a lighter or mitigated punishment; wherein if the lesser crime, may be exempted from punishment. Secondly, after committing a crime of surrender, but "can be" lenient punishment, not the "should be" lenient punishment. Because of some crime circumstances are particularly bad, crime is particularly serious, if from ending lenient punishment, not necessarily fit the crime to adapt the principle; provisions only "can be" lenient punishment, but also can prevent crime malicious use of voluntary surrender system reached its improper purpose. Once again, a committed several crimes, the crime only part of the crime of surrender, surrender the legal effect only applies to have criminal offender, not for the surrender of the crime, not to surrender by the lenient punishment. Finally, more than two joint crime, the legal effect of surrender is applicable only to surrender the prisoners, cannot be applied to the other prisoners did not surrender.

Five, meritorious service

Meritorious service is divided into general crime and major meritorious service. General meritorious performance: criminals after report, expose others to crime, including criminal cases in the common crime to expose other common crime and accomplice outside, be verified; provide important clues for solving other cases, can be verified; organizing others criminal activities; assist the judicial authority to arrest the other suspects (including the accomplice); with other outstanding performance for the country and the society.

To surrender or to range of behavior, can not be identified for meritorious service. For example, a nationally recognized staff B to pay bribes, voluntarily surrender, to the judicial organ confessed bribery to B and B accepting a bribe fact, should not be considered a crime report, expose B. Because briber only confessed bribery to who truth, can be identified its truthfully confession crimes. So, a behavior does not exceed the scope of voluntary surrenderIThe other, not identified as meritorious service.

According to the relevant judicial interpretations, major meritorious service mainly as follows: the criminal accusation, exposing other major crimes, be verified; provide important clues for solving other serious cases, can be verified; to prevent others from major criminal activities; assist the judicial organ arrest the criminal major criminal suspects (including the accomplice to the state and Society); other major contributions as well. The term "major case", "major suspects" "crimes" standard, generally refers to the criminal suspect, the defendant may be sentenced to life imprisonment or criminal punishment or cases in the province, autonomous region, municipality directly under the central government or nationwide influence etc..

The criminal has performed meritorious service, may be given a lighter or mitigated punishment; there are significant meritorious performance, can be mitigated punishment or be exempted from punishment; crime after the surrender and major meritorious services, shall be reduced or exempted from punishment.

The third section The sentencing system

One, the heavier, lighter, reduced and exempted from punishment system.

(A)The heavier, lighter punishment system

Heavier and lighter punishment, "should be in the statutory punishment within the limit of the penalty shall be given a heavier punishment", is refers to the heavier punishment in legal punishment within the limits; a lighter punishment, is refers to the lighter penalty in legal punishment within the limit of the.

First, he shall be given a heavier punishment and light punishment, must be sentenced to a punishment in legal punishment within the limits, not above or below the legal punishment prescribed punishment punishment.

Secondly, he shall be given a heavier punishment is not found in the legal punishment "middle line" above punishment, light punishment does not mean that in the legal punishment "median line" in the following sentence. If the heavier punishment and light punishment legal punishment of the "middle line" as the standard, it would inevitably lead to a felony qingpan or misdemeanor heavy sentence situation.

Finally, he shall be given a heavier punishment matters for the general case neither from punishment and no lighter punishment that should be sentenced to punishment, namely the plot than without penalty to some relatively heavy. The correct approach is: first temporarily exclude criminal is heavier, lighter punishment, considering the crime fact, nature, circumstances and the degree of harm to society, according to the criminal law shall be sentenced to a punishment measure what, then consider the aggravating circumstances and mitigating circumstances, thus it will declare the punishment.

(two) a mitigated punishment.

Mitigation of punishment is below the legal punishment punishment.

(three) exempted from punishment.

Two, the combined punishment for several crimes

(a) the concept of crimes

Combined punishment for several crimes, is refers to the people's court for a committed several crimes are the conviction and sentencing, and according to the legal principle and method, decisions shall be carried out punishment. Accordingly, the combined punishment for several crimes have the following characteristics:

1,  A committed several crimes. A man of two or more than two the number of crime is the prerequisite and combined punishment for several crimes. The number of people who commits several crimes, actually log shall respectively sentencing, still existing joinder of punishments for plural crimes.

2The number of crimes, in the legal period. Only when the punishment has been completely executed the crime committed several crimes previously found, to apply for. Include the following: (specific conditions1) before the judgment is pronounced a committed several crimes (2After declaration of judgment), before completion of the execution of criminal law, was sentenced criminal in the judgment is pronounced, other crimes have not previously judgment (omitted crime ()3After declaration of judgment), before the completion of the execution of criminal law, convicted criminals and crime (crime; (New)4) declared probation or parole criminals in crime person on probation or parole test period and found that leakage of crime or crime.

Thus, the combined punishment for several crimes and recidivism shall be given a heavier punishment is different, after the completion of penalty and crime, to constitute recidivism problem, rather than for the problem. The punishment has been completely executed after the discovery of the criminal in the judgment is pronounced, other crimes have not previously decision, if not exceeding the limitation of prosecution, shall be convicted of a crime, but it is neither joinder of punishments for plural crimes, nor a recidivism problem.

3The crime of conviction and sentencing, logarithm respectively, according to the legal principle and method, decided to implement the punishment. The first person of the crime committed several crimes respectively after the conviction and sentencing, decided to merge the execution of penalties. So the line for the outcome, is the logarithm crime a verdict, several decision but not independent of each other. Logarithmic crime a verdict, not take "gudui" methods of crime number as a whole comprehensive judgement, but first conviction and sentencing, according to certain principles and methods of implementation decided with penalty. Specific performance in two ways: one is before the judgment is pronounced, a committed several crimes, to a conviction and sentencing, then according to the legal principle and method, decided to merge the execution of punishment; two is the judgment is pronounced, the criminal law is executed after previously found leakage or the crime to commit new crimes, or on probation, the new recidivism test period or find leaks the crime, only need to drain or new conviction and sentencing, then according to the legal principle and method, and the former crime penalty decision should be performed with penalty.

(two) the principle of graft

Concurrent punishment for several crimes, refers to the basis of a committed several crimes and the principle of punishment. Take the criminal law the main principles of absorption principle, and principle of limitative aggravation principle g, and mixing principle.

Absorption principle content: the number crime respectively, conviction and sentencing, and then select a penalty is the most heavy as executing penalty, the lighter penalty is the most severe punishment absorption.

And a principle that the principle of additivity, its content is the crime of conviction and sentencing number respectively, and then add the crime punishment at all performed together.

Limitative aggravation principle: the maximum penalty for sin as the foundation, add some penalty as executing penalty, or in a few punishment combined sentence below, according to the discretion of punishment execution.

Before the judgment is pronounced a committed several crimes, except sentenced to life imprisonment and death, should be above the maximum total term following, several sentences, as appropriate, decided to be executed, but the regulation of maximum of not more than three years, criminal detention of not more than one year, are to be sentenced to not more than twenty years. If the number of crimes in a supplementary punishment is imposed, the supplementary punishment shall still be executed. Therefore, China's criminal law on the punishment to the mixed principle.

1For, sentenced to life imprisonment and death, take the absorption principle.

1.For sentenced to life imprisonment and death, take the absorption principle. (1Among the crimes sentenced to several death) or the most severe penalty for, only the execution of a death penalty execution, no other. (2The number of crimes in several) sentenced to life imprisonment or the most severe punishment is life imprisonment, perform only a life imprisonment, perform no other punishment. Can not be more than two life imprisonment and death penalty. Life imprisonment and death penalty is distinct in two kinds of punishment; criminal law to the death penalty is strictly controlled, will more than two life imprisonment and death penalty, it expanded the scope of application of the death penalty; and if the defendant committed the crime should be sentenced to life imprisonment, means and transformation the possibility, not decided to merge the death penalty.

2, the sentenced to prison, detention and control, take the limitative aggravation principle. In prison, detention, control all deadlines, can be merged itself, but if you take the doctrine, it is too strict, and not practical; if the absorption principle, it is too broad, is not conducive to the prevention of crime. So, the criminal law of our country stipulates the limitative aggravation principle. "Limit" is embodied in two aspects: one is the sum of penalty limit, two is subject to punishment prescribed punishment limit.

In prison as an example, the defendant has committed two crimes, the punishment imposed for respectively10Years and8Years, aggregate sentence18Years, the maximum penalty for10Years, it should be in the10Years or above18The execution of the penalty decision, the term limit. If the penalty respectively10Years,8Years,6For years, the total sentence24Years, the combined punishment for several crimes maximum statutory penalty constraints. "Aggravated" performance, not only in the highest number of sentence sentenced penalty above, but also more than in prison, detention, control of the general statutory ceiling, decided to be executed. In prison than in punishment15Years to reach20Years, criminal detention may exceed6Month to achieve1Years, control over2Years to reach3Years.

(three) the situation is different for the

1Before the judgment is pronounced, the punishment of a committed several crimes

Before the judgment is pronounced a committed several crimes, and crimes have been found to be punished, according to the "criminal law" provisions of the punishment principle. For the same crimes are generally not punishment, but to a crime. As is usually the case, for the same crime as a crime, select the corresponding legal punishment of crimes, can realize the principle of adaptation. For example, for committing robbery repeatedly, repeatedly raped, applicable to upgraded legal punishment, penalty according to the. However, if a crime against crime adapts the principle, should be punished. For example, for many others caused minor injuries, because there is no alternative to upgrade to a legal punishment, crime is likely to be well deserved punishment, should be combined punishment for several crimes. In addition, for the same crimes are too long, a crime is not rational, should also be combined punishment for several crimes.

2Before the punishment has been completely executed, found leaking crime punishment

"After the judgment is pronounced, before the punishment has been completely executed, convicted criminals found light in the judgment is pronounced, other crimes had no judgment, a judgment shall be rendered for the newly discovered crime, the before and after the two verdict sentenced to punishment in accordance with the provisions of this law, article sixty-ninth, decided to carry out the punishment. Has to be executed, shall be calculated in the term decided by the new judgment." Characteristics of this kind of crimes is: (1) a person who commits several crimes occurred before the judgment is pronounced, hospital.

(2) the original judgment only made decision on the part of the crime, no decision on the other part (Crime3No leakage) crime that the newly discovered crime and the original judgment crime is property of the same crime, in other words, even the same crime must be punished (4) will drain the conviction and sentencing of newly discovered, in accordance with the "criminal law" article69The provisions of the original judgment principle and the penalty be punished (5) has to be executed in the calculation of the term decided by the new judgment. This method is called "first and then reduced".

For example: the defendant is guilty of a crime of two before the judgment is pronounced, the people's court verdict but only a crime8Years in prison, execution3Years after the discovery of B sin, the people's court sentenced to the crime of B9Years in prison, so that in the9Years or above17The decision to be executed, if you decide to perform14Years, then, has been executed3The calculation in this year14Years, the defendant shall be11Years in prison.

If you have a verdict is more than two crimes, and the first69The effect of different provisions. For example, the defendant guilty of Ding four crimes before the judgment is pronounced, but people's anti yuan only decision a crime8Years in prison, B sin12Years in prison, decided to merge the execution18Years in prison. Execution5Years later, found that propylene crime and Ding sin, the people's court sentenced to the crime of C5Years in prison, Ding sin7Years in prison. The punishment of "number of punishment in the maximum sentence is"18Years, rather than12Years. So the people's court shall18Years or above20The decision shall be executed. If you decide to perform19Years, also need to perform14Years. Conversely, if the defendant committed four crimes were discovered that before the judgment is pronounced, according to the "criminal law" article69The provisions of article, only in the12Years or above20The decision to be executed. Obviously, the70The provisions of section69There is difference between the provisions of the.

3Before the criminal law, the completion of the execution of the punishment and new crime.

After the judgment is pronounced, before the punishment has been completely executed criminals were sentenced, and crime, shall make a judgment on the newly committed crime, the former crime did not execute the penalty and punishment imposed for the latter crime, in accordance with the provisions of law sixty-ninth, decided to carry out the punishment. Characteristics of this kind of crimes is: (1The criminals in the original judgment) after the announcement, before the punishment has been completely executed and committed a crime (2The new crime and the original judgment) regardless of whether the crime nature of the same crime, shall be punished (3) will be the new conviction and sentencing; (4The former crime) without the implementation of the penalty and punishment imposed for the new crime, in accordance with the "criminal law" article69The principle of punishment (5) has to be executed shall be calculated by the decision in the new sentence term. This method is called "the first reduction and".

For example, the defendant guilty of a crime were sentenced to prison15Years, execution10Years later he committed a crime, the crime and sentenced to8Years. According to a method of decreasing and, should be no execution5Years and new crime8Since the implementation of punishment, namely in the8Years or above13The decision to be executed, if you decide to perform12Years, the defendant also served12Years. Executed with the sentence, the practical implementation of the sentence22Years. Obviously, the first reduction of laryngeal disease results before and after subtraction of the results: one is the actual implementation of the beginning sentence improves, two is the actual execution time may exceed the provisions of the criminal law for maximum statutory penalty constraints. The above example as an example, if taken before and after the reduction, the actual implementation of the starting point of punishment15Year, the maximum shall not exceed20Years; and adopt the method and decreased first and then, the actual implementation of the starting point of punishment18Years, the maximum sentence can make23Years. The penalty provisions of this crime in the criminal law, because the people during the execution of having committed a crime, the subjective vicious deeper, personal danger is more serious, giving heavier punishment only, ability more effectively to educate and reform criminals. In addition, methods of decreasing and has a characteristic, the criminals during the execution of punishment and new crime sooner or later, the minimum period and the minimum duration of punishment decision executing penalty and sentence the actual implementation of the inverse relationship, or say, criminals to commit a crime in penalty execution period the time and distance of sin sentenced to execution time closer (residual term the criminals to commit new crimes before the crime penalty shorter), cumulative punishment decision of punishment execution, the actual implementation of the minimum period, the minimum duration of the longer term. To consolidate the achievements, to improve the efficiency of the execution of punishment, is of great significance.

If the crime of people during the execution of punishment and new crime, and found that the announcement leaks the crime before the original judgment, the first leakage crime and crime of the original judgment, according to the "criminal law" article70Methods before and after reduction provisions of punishment; then the new crime penalty in conjunction with pre penalty after penalty is not to be executed, according to the "criminal law" article71The provisions of decreasing and method of combined punishment. For example, the crime committed a crime has been the people's court sentenced8Years in prison, execution5Years later, the criminal crime committed B, the people's court sentenced9Years in prison, the original judgment have found that leaks the crime before the sentence6Years in prison. Therefore, the leakage of sin6Years in prison and a crime8Years in prison be punished, in8Years or above14The decision shall execute the penalty, if you decide to perform12Years in prison, then crime also need to perform7Years in prison. And then, and then B crime9Years in prison with no execution7Years, be punished, in9Years or above16The decision shall execute the penalty, if you decide to perform12Years, is actually executed criminals17Years.

Three, the concept of probation

(a) concept of probation

Probation, refers to the sentenced to criminal detention,3Years in prison criminals, according to the circumstances of the crime and the performance of repentance, if a stay of execution of punishment does not cause further harm to society, have certain provisions of the test period, suspend the execution of punishment; in the test period, if abide by certain conditions, a the punishment will no longer perform. In short, probation is conditionally not execute the judgment of punishment. Its characteristics are: both sentenced to criminal punishment, and not the implementation, but retain the possibility of the performance in a certain period. Probation is not an independent kind of punishment. From the discretion whether to execute the penalty sense, probation is a penalty sentencing system; from the sense, probation is a penalty execution system.

Probation is different from the death sentence with a reprieve. Although the two are conditionally, not the implementation of the original penalty, are not independent penalty, but there are essential differences in the applicable object, intellectual method, test period and the legal consequences of such aspects: (1Probation applicable) sentenced to criminal detention or3Years in prison criminals; reprieve for should be sentenced to death but need not be executed immediately crime. (2) for probation of offenders is not detained; for declaration of reprieve criminals must be imprisoned, and forced labor reform, see how one behaves in the future. (3Kinds of punishment and the prison) is different in different legal test period of probation in the sentence; sentence test period2Years. (4The consequences) or non execution of the original punishment, or the execution of the original sentence penalty or punishment; penalty consequences to both may be commuted to life imprisonment or imprisonment, may also be executed.

Probation and military "wartime probation" has the distinction.

In wartime, is sentenced to three years in prison without a real danger of probation criminals soldiers, allowing it to redeem himself, has performed meritorious service, the original sentence can be revoked, shall not be regarded as a criminal. It is not difficult to see, the wartime probation though is a special probation, but with ordinary probation time, applicable objects, contents, test conditions, legal consequences and so on is quite obvious difference.

(two) the applicable conditions of probation

Probation must meet the following conditions:

1, probation is sentenced to criminal detention or3Years in prison criminals.

(1) here was sentenced to criminal detention or3Years in prison, was declared punishment, not punishment; even the minimum statutory penalty than3Years in prison, but because of the extenuating circumstances and sentenced3Years in prison, may also apply the probation; by the same token, if the punishment imposed for the above3Years in prison, not applicable probation.

(2) is sentenced to control or fade out additional punishment, not applicable probation. Because the control does not exist and additional penalty of deprivation of personal liberty, probation is of no practical significance.

(3) if a committed several crimes, combined punishment for several crimes, decided to implement the punishment for3Years in prison or detention, also can be placed on probation.

2According to the circumstances of the crime, and the performance of repentance criminals, probation does not cause further harm to society. Substantive conditions of probation is, not the implementation of penalty, the criminal did not cause further harm to society; and the judge did not cause further harm to society is based on the circumstances of the crime, and repentance of criminals. Where the circumstances of the crime, is a comprehensive concept, including both the objective aspects of the plot, but also subjective plot. In the process of examination and approval of repentance, deep ideological roots of crime.

3Recidivism, must not. In other words, not for recidivism, probation. ;

(three) the test period and investigation

The test period, refers to the period of probation investigation of criminals. Probation is conditional on the punishment imposed for not performing, in order to prove the criminal compliance with these conditions, in order to determine the probation at the same time, a test to the crime person limit, this is the test period of probation.

The detention of the probation period for suspension or above1The following year, but it may not be less than2Months in prison; the probation period for suspension or above5The following year, but it may not be less than1Years. Visible, the probation period shall not be shorter than the original term, can be equal to or longer than the original term. In custody before the judgment, do not discount the probation period.

Probation cannot indulge no matter, also cannot examine into control, declared probation of offenders, shall comply with the following provisions:

1.Abide by the laws, administrative regulations, submit to supervision (2) reporting his activities in accordance with the provisions of the observing organ:3.To comply with the provisions of visitors (the observing organ40Leave the living city, county, or relocating, organ for approval before. By the probation of offenders, if a supplementary punishment is imposed, the supplementary punishment shall still be executed. This shows, probation shall not extend to additional punishment.

(Four)Upon expiration of the probation period and revocation of probation

Upon expiration of the probation period, refers to the crime during the probation period, not to commit new crimes, found no judgment is pronounced, other crimes had no judgment, no serious violation of probation supervision and management provisions of the act, and after a test period.

Revocation of probation, refers to the crime during the probation period, did not comply with the statutory conditions, and the original judgment is pronounced, the probation revoked, the implementation of the original penalty crime. Revocation of probation includes two kinds of situations:

One is the criminal probation, the probation period commits another crime, or that judgment is pronounced, other crime had not sentenced, the suspension shall be revoked, the new crime or newly discovered crime judgment, the former crime and the punishment imposed for the latter crime, in accordance with the "criminal law"69The execution of the criminal punishment, decision. If the original judgment is pronounced in custody, detention date shall be offset.

Two is the probation of offenders, during the probation period, in violation of laws, administrative regulations or the public security department under the State Council on probation supervision and management regulations, if the circumstances are serious, the suspension shall be revoked, the implementation of the original penalty. The "violation of the law", not including the violation of the criminal law. If the violation of the criminal law, is the first class of revocation of probation, shall be punished, not just the implementation of the original penalty problem.

The thirteenth chapter  Execution of punishment

The execution of punishment, is refers to the organization law execution of punishment, punishment of criminal judgment according to the content of legal effect of the implementation, various activities and resolving the legal issues resulting from the. The executive body of the penalty is the organ of legal penalty execution; execution object is due to the punishment may commit a crime. Prisoners and criminals are the same. Execution of punishment is the basis of criminal judgement and ruling legally effective. The basic content of penalty execution is the penalty will be effective criminal sanction decision implementation, implementation. Execution of punishment is not simply the implementation of criminal judgment locates the penalty content, some legal problems caused by this but also solve the fact, the most typical is the commutation, parole, the original will be timely adjustment of certain limit, so the commutation, parole has also become an important penalty execution system.

The first section Commutation system

One, the concept of commutation

Commutation of sentence, refers to the sentenced to public surveillance, detention, criminal in prison, life imprisonment, in penalty execution period, he conscientiously observes prison regulations, accepts education and reform, shows true repentance, or by the meritorious performance, appropriate to reduce the original penalty system. Was sentenced to life imprisonment of offenders, during the period of execution has the meritorious performance, will be reduced to life imprisonment15Years in prison; sentenced to8Years in prison criminals, with yo repentance during execution, will8Years in prison to7Years in prison.

Commutation of the sentence into two types: one is his sentence may be commuted, namely has the certain conditions, the people's court may order the commutation. Two be commuted, the major meritorious service, the people's court shall sentence. From the commutation method and effect, the commutation is also divided into two types: one is to life imprisonment sentence, this is the sentence of the change; two is to control, criminal detention, fixed-term sentence reduced, does not change the kind of punishment.

Different from the sentence commutation. Sentence refers to the original sentence is incorrect, removed the original judgment to judgment; revision is the result of a variety of. Commutation of the sentence does not change the original judgment, but based on that of the original judgment, based on the legal reasons penalty to reduce the original judgment. Commutation and mitigating the difference is more obvious.

Two, the commutation condition

(a) condition

Only sentenced to public surveillance, detention, imprisonment, criminal sentence in prison. This is a common condition can and should commutation commutation. Here only the sentence of the restrictions, no restrictions relating to the term, not the criminal nature of the limit. First of all, for the sentence to be commuted to life imprisonment or in prison, although substantially reduced the sentence, but not "criminal law"78The provisions of commutation. Secondly, to reduce the additional penalty is not "criminal law" article78The provisions of article, the original penalty commutation of punishment, at the same time shorten correspondingly the probation period. To shorten the test period of probation to, although not "criminal law" article78The provisions of commutation, but the premise to shorten the probation period is the original sentence penalty commutation of punishment.

(two) substantive condition

1In essence, conditions can be commuted, crime in penalty execution period, he conscientiously observes prison regulations, accepts education and reform, shows true repentance, or by the meritorious service. Specifically, in the following two kinds of circumstances, can the commutation: (1) crime during execution, conscientiously abide by the regulations, education reform, shows true repentance. "Repentant" refers to also have four aspects: plead guilty; he conscientiously observes prison regulations, accepts education and reform; actively participate in learning politics, culture, and technology; to participate actively in the work, completes the production task. (2) has performed meritorious service. "Meritorious service" is a one of the following situations: report, disclosure supervision and criminal activity, or provide important clues to solve the case, can be verified; to prevent others from criminal activities; technical innovation in the production, scientific research, outstanding performance; in the emergency disaster relief or preventing major accidents are positive; other outstanding deeds for the country and the society.

2Substantive conditions, shall be commuted, crime in penalty execution period, a major meritorious services.

1.To prevent others from major criminal activities (2.Report major criminal activities outside the prison, verified (3) making inventions or major technological innovation (4Risk one's life for another) in daily production, life (5) in resisting natural disaster or preventing major accidents, outstanding (6) other major contributions to the state and society.

Limit of three, commutation and amplitude

With the above two conditions, they can or should be reduced. However, the commutation have certain limit.

If too much, it violates the principle of adaptation of serious crimes, lossy court; if less too little, it is difficult to transform to the crime person's role in encouraging, also lost the significance of commutation system. "Criminal law" article78Article2Paragraph: "after commutation the actual execution of the sentence, sentenced to public surveillance, detention, are to be sentenced to not less than the term originally decided, 1/2; sentenced to life imprisonment, not less than ten years." If regulation, criminal detention, prison sentence commuted after the original term of 1/2, non commutation in prison after only10Years in prison, he shall not re commutation. In this sense, one of the conditions for commutation of punishment to limit is reduced.

Not only is the legal limit of commutation, but also to a certain extent, including when to commutation, a sentence could be much, how long can again commutation problem. Overall, the principle should be, is not only beneficial to encourage the offender to actively reform, seriousness and maintain law and judgment.

Can the commutation, generally speaking, commutation time begin serving his sentence, should be proportional to the original judgment. As life imprisonment in jail2Years later, can be reduced; the longer prison, in prison1Years6Months later, can reduce the habit; short in prison, detention and control, should be reduced accordingly. It should be reduced, was found to have significant meritorious service can be reduced. A commutation period, should not be too long, nor too short, basically also and the original judgment sentence is proportional to. Criminal law, although not expressly commutation can be, but from the commutation system of spiritual point of view, as long as to meet the conditions, should be repeatedly commutation, but every time a commutation limit, shall be calculated in the original judgment carries a penalty of up to standard, but not before a commutation sentence as the standard for calculation. For the longer term, between the two commutation in general1Years is appropriate; for the short term, criminal detention, control, between the two commutation interval shall be shortened accordingly. But to be commuted, should not be interval limit. In determining the sentence when the magnitude of the original judgment, in addition to considering the penalty, must also consider the criminals repent, meritorious service and other specific circumstances. For example, for both repentance and meritorious service and major meritorious services, for many meritorious performance, in when the sentence should be appropriate to relax the amplitude; for the juvenile offenders, the commutation should also be appropriate to relax the amplitude.

Program and commutation, commutation of the sentence of four after calculation

In order to ensure the legality and legitimacy of commutation, avoid the misuse and abuse of commutation system, authority and seriousness of the criminal law and the decision of maintenance, "criminal law" article79A special provision: "criminals commutation, by the law enforcement to the intermediate people's court, a written proposal for commutation of punishment. When the people's court formed a collegiate bench trial, to show true repentance or crime fact, decide commutation of punishment. Without legal degree not commutation.

Calculation method of commutation sentence types, because the original sentence penalty of difference: the original penalty for control, criminal detention, fixed-term sentence after sentence, from the original judgment calculation the implementation date has been performed; the original term part, should be calculated within sentence after sentence. For life imprisonment sentence, the prison sentence from the date the order of commutation is issued; have to be executed and the judgment is pronounced, the date shall not be calculated in custody, in order of commutation of the prison sentence. For life imprisonment sentence again after commutation, calculation of the sentence, it shall be calculated in accordance with the method of commutation of sentence. Was the law application of commutation, after the original judgment error, the retrial revision, the original sentence is still valid, the commutation period, after deduction should be commuted sentence in the.

The second section The parole system

A concept, parole

Parole, refers to the part of the criminal was sentenced to prison, life imprisonment, after the implementation of certain criminal law, but also of repentance, and will not cause further harm to society, to be ahead of the release of the conditions attached to the system. Conditional, is paroled criminals, if abide by certain conditions, the punishment originally decided shall be considered completed; if not comply with certain conditions taken into custody, the execution of the original sentence penalty or punishment.

Parole is the pursuit of the positive effect of punishment and the establishment of the system, but unlike the temporary execution outside prison. Parole is to be sentenced to fixed-term imprisonment or life imprisonment of offenders, the temporary execution outside prison for sentenced to prison, detention of offenders; parole is suitable for performing certain sentence, shows true repentance, and will not cause further harm to society of crime, the temporary execution outside prison for not suitable for the special legal case execution in prison criminals; parole if not comply with the statutory conditions, my punishment is required, the test period is not included in the original sentence, the temporary execution outside prison sentence, are included in the original penalty.

Parole is a kind of reward repent of the inmates of the good, but unlike the commutation. Parole is to be sentenced to fixed-term imprisonment or life imprisonment of offenders, the commutation is applicable to sentenced to public surveillance, criminal detention, fixed-term and criminal imprisonment; parole can only be used once, commutation can be used repeatedly; parole is test period, if the crime or other theorem by, cancellation parole, false no test period, there is no revocation problem of commutation; parole is a direct result of the early release of an offender, the direct result is to reduce the original penalty commutation.

Parole is Yu penalty reprieve, but unlike the wake. Parole shall be applicable in the implementation of the original penalty, probation and parole in the judgment of certain penalties; according to the crime in the repentance process execution of punishment, probation is based on the circumstances of the crime and repent before judgment; parole is applicable to be sentenced to life imprisonment for the crime and people, probation applicable to sentenced to criminal detention or3Years in prison criminals; parole suitable conditions do not perform more than punishment, probation is conditionally does not carry out the original all punishment; to comply with the statutory conditions during the probation period, think of the original sentence has been completed, and probation period, to comply with the statutory conditions, the penalty is not performed.

Two, the applicable conditions of parole

Application of parole properly, will have to play a positive function of the parole system; and the application of parole is appropriate or not, depends to comply with the conditions stipulated in the criminal law on parole. According to the "criminal law" article81Article, the parole conditions are as follows:

(a)The condition for parole

Parole applies only to be sentenced to life imprisonment for the crime. Sentenced to control, because there is no offender deprived of personal freedom, there is no parole problem; sentenced to criminal detention, the sentence is very short, parole of no practical significance; by the immediate implementation of the death penalty, there is no parole problem; sentenced to death with a2Years of implementation, can not be directly released on parole, only to die slowly reduced to life imprisonment or in jail, with parole conditions, can the parole.

(two) prison conditions

Parole is only applicable to the already executing a portion of criminal penalty. This is because only after a certain prison sentences, in order to determine whether a crime repentance; on the other hand, in order to prevent the abuse of parole execution of punishment, to avoid confusion, stability and the people's court to avoid serious damage penalty decision. According to the "criminal law" article81Rule, was sentenced to the crime, the implementation of the above sentence sentence 1/2, was sentenced to life imprisonment of offenders, the actual execution10Years, can the parole. According to the "criminal law" article81Provisions, if there are special circumstances, with the approval of the Supreme People's court, can not be limited to prison. Here the "special circumstances", refers to the national political, national defense, diplomatic and other aspects of the special needs of the situation.

(Three)Substantive conditions

Parole is only applicable to during the execution of punishment, conscientiously abide by the surveillance, access to education reform, shows true repentance, ahead of the release will not cause further harm to society of criminal. This is one of the most important condition for parole. True repentance, is indeed plead guilty, Huizuizixin. Parole is not a crime as the condition, according to the relevant provisions of prison law, if the major meritorious services, should advance parole, parole would not endanger the society, is that if applicable released on parole criminals in advance, the criminals will no longer cause harm to the implementation state, society and the interests of the masses, or older, the body disability (excluding self mutilation), and the loss of the crime situation of ability.

(four) negative conditions

Recidivists and for murder, robbery, rape, kidnapping, explosion and other violent crimes sentenced to10Years of fixed-term imprisonment, criminal, without the possibility of parole. First of all, no matter what is imposed on recidivist punishment and sentence, the parole recidivism. Secondly, the implementation of the murder, robbery, rape, kidnapping, explosion and other violent crimes, and sentenced to10Years of fixed-term imprisonment, criminal, without the possibility of parole. "The violence crime" in addition to several listed above, also includes such as damage, armed insurrection, riot, aircraft hijacking and other violent crimes. If the offender is not violent crime, or even violent crime and punishment imposed for less than10Years in prison, still on parole. Finally, sentenced to10Years or more in prison, criminal violence to life imprisonment sentence, even if the sentence below10Years in prison, also without the possibility of parole.

"Criminal law" article82The provisions for the crime, the parole, the people's court at or above the intermediate people court shall put forward proposal for parole, the collegial panel trial combination, to meet the conditions for release on parole, ruling released on parole. Non statutory procedures with no chance of parole.

Three, the probation period for parole and revocation of parole

The parole is conditional early release, conditions of the pay is a crime shall abide by certain conditions within a certain period of time. For a certain period of time and here is the parole test period. If the test duration is too short, it will not achieve the role of parole; criminal law to adapt with the original penalty test period, namely the prison the probation period, has not been completed sentence of life imprisonment; the probation period for10Years. The probation period for parole, calculated from the date of.

During the probation period, by the public security organs supervision paroled criminals. Paroled criminals shall comply with the following provisions, to: (1) comply with the laws, administrative regulations, submit to supervision; (2) reporting his activities in accordance with the provisions of the supervising organ; (3) of the supervising organs (4) left living city, county, or moved, it shall be submitted to the supervisory authority for approval. Paroled criminals, if, during the probation period, comply with certain conditions, not to commit new crimes, found no leaks the crime before the judgment is pronounced, not in violation of the provisions of laws, administrative regulations or the public security department under the State Council the parole supervision is concerned, the probation period, the original sentence shall be deemed to have completed, and shall be announced to the public.

The parole is conditional early release, therefore, if a criminal in the probation period did not comply with certain conditions or the conditions do not meet the fact, then the parole shall be revoked. "The penalty"86Shall include the following three cases, revocation of parole:

First, paroled criminals, commits another crime during the probation period, the parole shall be revoked. "Criminal law" article71Method and the provisions of the first decreased and then be punished. The parole after the test period, shall not be included in the term decided by the new judgment. As long as it is in the probation period for parole commits another crime, even after the probation period after the discovery of the new crime, also the parole shall be revoked, be punished according to the method of decreasing and the.

Second, during the probation period for parole, found the criminal in the judgment is pronounced, other crimes had no judgment, the parole shall be revoked. According to the "criminal law" article70Methods shall be punished before and after reduction, has to be executed, the calculation in the term decided by the new judgment, but after parole after the test period, shall not be counted in the term decided by the new judgment. Notable is, if the false necrosis test period expires, it is found to be fake drug crime in judgment is pronounced, other crimes have not previously judgment, may not be revoked parole, only for the newly discovered crime investigation, prosecution, trial, otherwise no criminal punishment and crime.

Third, paroled criminals, during the probation period, in violation of laws, administrative regulations or the public security department under the State Council on parole supervision management provisions of the act, does not constitute a new crime, should be in accordance with the statutory degree revoked parole, and committed to prison without completion of the implementation of the criminal law. In this case, does not exist for the problem.

 

 

Elimination of the fourteenth chapter of punishment

Criminal law refers to destroy, due to legal or factual, which represent the state of the judicial authority can not exercise the specific punishment on crime. Annihilation of punishment to the behavior constitutes the crime premise. Annihilation of punishment must be based on certain matters, including the judgment before the idea of penalty causes of eradication and the judgment of the real right of punishment causes of eradication, some of which has dual nature of the subject matter. To sum up, the elimination of criminal law are: (1Beyond the limitation of prosecution; ()2The amnesty): (Exemption of criminal punishment3) told to deal with crime, tell or withdraw told not (4The suspect, the defendant) death (5Other legal reasons). The only study limitation and pardoned two kinds of penalty elimination.

The first section Prescription

1Concept, aging

Time is divided into the limitation of prosecution and execution time.

Prescription of prosecution, is the penalty term of validity, shall be investigated for criminal responsibility in the criminal; during this period, the judicial organ shall have the right to pursue criminal responsibility of the released; more than this term, the judicial authority can not be investigated for criminal responsibility. Therefore, beyond the limitation of prosecution, means not exercise for the punishment power, the power and execution power, resulting in the annihilation of punishment.

The provisions of prosecution is obviously not deliberately indulge crime, but in order to achieve the purpose of punishment. Provisions of limitation of prosecution system embodies the purpose of criminal law, embodies the combination of punishment with leniency of criminal policy of "leniency, embodies the history, the current strict" policy, conducive to the judiciary police punishment from current criminal activities, is conducive to the stability of social order.

Administrative efficiency, is refers to the criminal law, penalty execution duration on the sentenced person; in the meantime, the judicial organ shall have the right to execution; over this period, the judicial authority can not execute penalty. Therefore, over limitation of penalty execution, means that in the post announcement made can not exercise the right execution. But our country's criminal law has not stipulated the execution limitation.

Two, the statute of limitations period

According to the "criminal law" article87The provisions of criminal prosecution, the following terms: (no longer1) maximum statutory penalty5Years in prison, after5Years (2) maximum statutory penalty for5Year is less than10Years in prison, after10Years. (3.Maximum statutory penalty for10Years or more in prison, after15Years (4) the maximum prescribed punishment is life imprisonment or death, after20Years; if20That must be prosecuted years later, shall be submitted to the Supreme People's Procuratorate for examination and approval.

The limitation period for prosecution of criminal law has two aspects: on the one hand, according to the limitation of the length of the period, and the extent of harm to the society, the crime criminal law to adapt the weight. This is the offense to adapt the principles embodied in the period for prosecution. On the other hand, the criminal law into full account the crime after hiding, escape time, the possibility that criminals using prescription system of evasion of legal sanction is rather small.

The limitation period for prosecution to the maximum statutory penalty shall prevail, not sentenced to actual should penalty as the standard. Perhaps with the actual shall be sentenced to punishment for the standard is more reasonable, but in the absence of the prosecution, not the trial of the case, shall be sentenced to a punishment to the standard does not have the maneuverability, can lead to voluntary prosecution or not, so justice loss penalty, so on the basis of the statutory punishment most high.

The maximum statutory penalty as the standard, refers to the behavior of the seriousness of the offense committed, criminal judgment should be applicable and appropriate sentencing range, according to the maximum statutory penalty to calculate the period for prosecution.

If the maximum statutory penalty is life imprisonment, the death penalty,20Year after that must be prosecuted, the matter shall be submitted to the approval of the Supreme People's procuratorate. If the maximum statutory penalty for the prison, after15Years later, even if that must be prosecuted, no prosecution.

 Three, calculation of the period for prosecution

(a) the calculation of the general criminal prosecution

Is not continuous and continue to state criminal. "The period of this crime from the crime date" "date of crime" should be the date of the establishment of crime, namely behavior conform to the crime constitution day. Because the criminal law on the crime of the various elements of different, thus recognizing crime standard is different. Not to harm for the elements of the crime, the implementation of the act date is the date of crime; for the harm to the results for the elements of the crime, the harm results occur on the day, is the date of crime.

(two) the calculation of continuous or continuing crime prosecution deadline

Criminal act is of a continuous or continuing state, calculated from the date of the end of crime. The criminal act is of a continuous state, belonging to the continuous offence; criminal behavior to States, to continue to make or continue to make. The calculation for the period for prosecution of criminal law recidivist, does not expressly stipulated in the criminal law, but the spirit and the relationship between habitual and continuous offence, the period for prosecution recidivist, should also be calculated the last date of the crime.

(three) extended the limitation of prosecution

Extend the limitation of prosecution, refers to the period in the statute of limitations, because of the subject matter of the law, but the limitation of temporarily stopping executing. The criminal law of our country stipulates the extended two limitation of prosecution cases:

1, "criminal law" article88Article1Stipulates: "the people's Procuratorate, the public security organ, the state security organ or the people's court has accepted the case on file for investigation, escapes from investigation or trial, no limitation on the period for prosecution." Accordingly, the extension of the situation must have two conditions: (1By the people's Procuratorate), public security organs, state security organs for investigation or the people's court accepted the case (2Behavior person escapes from investigation or trial). With these two conditions, regardless of how long after, at any time can be prosecuted. After the judicial investigation or accepts the case, behavior does not escape investigation and trial, has limitation on the period for prosecution.

2, "criminal law" article88Article2Paragraph: "after the victim brings a charge within the period for prosecution, the people's court, the people's Procuratorate, the public security organ shall file the case and will not put on record, no limitation on the period for prosecution.

The case or to accept the judicial case although no limitation on the period for prosecution, but crime later still limitation on the period for prosecution. For example, people's behavior is a crime the judicial investigation, but the behavior of escape investigation and trial, then made a B sin. Previously a crime although no limitation on the period for prosecution, but later B sin limitation on the period for prosecution.

(four) interruption of prescription of prosecution.

Interrupt the limitation of prosecution, also known as the limitation of the update, refers to the period in time, due to the subject matter of the law, but through the previous limitation period is invalid, the end of the subject matter of the law, the effectiveness of re start the calculation. "Criminal law" article89Article2Paragraph: "the new crime and crime in the period within the prosecution before the deadline, the crime of accessory after the date of the crime. "In the period for prosecution if further crime is committed, the limitation of prosecution of the crime before they interrupt, the limitation of prosecution from the crime after the date of recalculation. For example, people in1980Years1Month1DayMake the general circumstances of robbery, the maximum prescribed punishment is10Years in prison, but human behavior at1988Years1Month1DayAgain the general circumstances of the crime of rape. At this time, the aging of robbery is interrupted, formerly of robbery crime prosecution period from1998Years1Month1DayRe start, after15Years, no prosecution. In this case, the previous robbery, actually should pass23Years of no prosecution.

To interrupt the limitation of prosecution, the limitation of prosecution according to look for reasons of legislation.

The period for prosecution before the crime, calculated from the date of the crime, maximum statutory penalty if after sin light in front of crime, the period for prosecution of the period for prosecution after the crime, the crime is not full, then only shall be investigated for criminal responsibility of the crime before the. Behavior person to1990Years12Month1DayThe general circumstances of robbery crime, the prosecution period15Years; he1995Years12Month1DayHas committed the crime of intentional injury, the period for prosecution for5Years; robbery crime prosecution period from1995Years12Month1DayTo re calculation2000Years12Month2Day(after the crime, the crime of intentional injury) over the period for prosecution, but the former crime (robbery) does not exceed the period for prosecution. In this case, can only be investigated for criminal responsibility in the crime of robbery, can not be investigated for criminal responsibility of the crime of intentional injury.

The second section pardon

Pardon is the country declared a legal system to the crime person exempt incrimination, exempted from punishment, including Amnesty and pardon.

Amnesty, usually refers to no specific crime people have committed crimes on a period of exemption from prosecution and punishment execution system. Amnesty can be all kinds of crime object state for a period of time, may also be an area of all the crime person, also may be a class or an event all offenders; Amnesty effect involves two aspects of crime and punishment, not only for himself, and for the punishment of the crime, and also exempted from punishment.

Amnesty, generally refers to the country from the execution of all or part of penalty system to more specific crime. Amnesty is the object of more specific crime; special effect is exempt from punishment, but not from the conviction.

China has cancelled the amnesty system, "criminal law" article65Article, article66The amnesty should be limited to amnesty.

According to the "criminal law" article15The provisions of "amnesty, the exemption of criminal punishment, criminal law is" cause elimination. The amnesty provisions of our constitution, decided by the NPC Standing Committee, released by the state chairman of amnesty.

Two, China's amnesty system

After the founding of the PRC, China implemented7Time amnesty. On this7Time amnesty characteristics can be summarized as follows: (1Amnesty) object basically confined to war criminals. (2) amnesty range is a category or categories of crime, rather than individual criminal. (3Pardon is the premise of crime) in the serving process did remove the evil and follow the good performance. (4To pardon criminals), according to the severity of their crimes and repentance (a distinction5"Small Li) only in criminal and not to sin. The amnesty potency is exempt from the execution of the remaining penalty or mitigation of the original sentence, not exempt from performing all the punishment, but not the punishment and guilt declared invalid.

On the fourth crimes

The fifteenth chapter On the crime

 

On the principle of the penalty, also known as, its research content is the specific crime and its legal consequences; the main research object is the second articles of the penal code is the "PRC Criminal Law". The general provisions and the specific provisions is abstract and concrete, general and individual, universal and special relationship. General to specific provisions as to rely on, and at the same time, we guide supplement. For example, the subject of crime, subjective elements of specific conditions and statutory sentence understanding and determination, must take the general rules as the guidance; when the provisions prescribed subject element, subjective element not, should be added to the general provisions.

The first section Criminal law system

A concept, criminal law system

The criminal law system, is refers to the specific classification of crimes and sequence. Specific provisions of specific crime and legal punishment, and specific types of crime are various, it needs certain standards will be divided into several kinds of concrete crimes (crimes), then to a certain standard of crimes of arrangement reasonable, while the specific crime in the crime of all kinds are arranged, so as to form a system. Visible, criterion system is actually the classification of crimes.

The classification of crime is the legal principle of crime and punishment requirements. The legal principle of crime and punishment for criminal law clearly stipulates the constitutive elements of the crime and the legal punishment. If no crime classification, means that the constitution of crime and criminal responsibility no specific crime stipulated in the criminal law, means "all criminals... ."Enough, this would violate the legal principle of crime and punishment.

Classification of crimes to judicial organs correct conviction and sentencing. Not only has the significance of classification of specific crimes, crimes Division also has this kind of meaning. Because of the social life of the crime is complex, the judicial organs are first identified real crime belong to a kind of crime, and then further that belongs to this kind of crime in which a specific crime.

Two, criminal law system

China's penal code specific to particular crime can be divided into ten categories, each chapter provides a kind of crime, the order is as follows: the crime of endangering national security, the crime of endangering public safety, the crime of undermining the order of socialist market economy, encroaches upon the citizen personal rights, democratic rights of crime, crimes of property violation, obstructing the administration of public order the crime of endangering the interests of national defense, crime, crime of bribery and corruption, malfeasance crime, the military crime of breach of duty. The criminal law system is established according to the above classification. Its features are as follows:

First of all, in principle according to the similar to the law benefits crime to crime classification. Different types of criminal violations of the law are different, so the different harm degree. According to the similar to the law benefits crime classification of crime, to grasp the nature, characteristics and harm of crime, to implement differentiated policies, conducive to the judicial authority of conviction and sentencing.

Secondly, based on the hazard degree of the crime of crimes are arranged. The crime of criminal law arrangement reflects the spear to fight with the key, reflects the legislators on the attitudes and understanding of all kinds of crime. The criminal law of our country basically to the harm degree of various kinds of crimes as the basis, according to the arrangement from heavy to light order.

Thirdly, internal relationship between gross damage based on crime and crime of the mountain on the specific crime arrangement.

From heavy to light arrangement, but on the whole, does not mean that all the specific crime behind a crime, a crime than the preceding minor.

Finally, basically mainly on the basis of legal interests of crime on the criminal classification. Some crimes and violations of more than two kinds of legal interest of criminal law, put them into different class according to the law of the crime of major crimes against law, such as the crime of robbery in the crime of property violation.

The second section The structure of the criminal law of the provisions

The criminal law provisions usually counts (assumption) and the legal punishment (legal consequences), description of structure"......, Department......The". For example, "criminal law" article236Article1Paragraph: "by violence, coercion or other means to rape women, three to ten years in prison. A sentence is: before the crime, including the crime, after the sentence is the legal punishment.

A,Counts

Crime is the crime situation specific norms on the description of the criminal code, indicated in the applicable conditions, only with a crime behavior norms of counts, to apply the standard.

It can be divided into two categories, one is the composition characteristics of specific crime description (basic facts), another kind is the suitable condition aggravated or mitigated punishment description (increase, reduce crime).

Provisions on basic facts describing ways, can be divided into four types, namely simple counts, recounted counts, citation counts, blank description of crime.

Simple counts only write the crime name, there is no specific characteristics of crime. Simple summary, avoid the tedious.

Characteristics prove guilt is in the specification, is described in detail the specific characteristics of crime.

Elements clearly, to avoid ambiguity.

Citation crime is cited to illustrate the other provisions of criminal law and determine the composition of a crime. Characteristics of citation counts is concise, stripes, avoid repetition.

Blank counts did not specify the characteristics of a crime, but the other laws, statutes must refer to the provisions of the law of blank description of crime, also known as white blank criminal law or criminal law. The criminal law in our country, there is no typical blank counts, as known as the blank criminal provisions specified in the regulations, according to at the same time, also describes some elements. Characteristics of blank description of crime is, according to other regulations, avoid the complex expression.

Some provisions of criminal law more than two kinds of behavior, some of which is a crime, there are several basic facts available, some are the basic facts of several crimes, which is the study of the theory of crime cannot be ignored.

Worse, reduce crime indictment and reduce crime to aggravate. Aggravated crime criminal law has three ways: one is often aggravated the indictment and the legal punishment provisions. Two is used for the specified aggravated the indictment and the legal punishment; the three is after the indictment and the legal punishment, then within the same paragraph shall increase the indictment and the legal punishment. The criminal law on the provisions to reduce crime, generally established in the provisions of the basic facts and legal penalties in the same terms, no special provision or fund to reduce crime.

Two, charges

(a) the concept of crime

Crime is a crime name, is the highly generalization of the specific nature of the crime or the main feature; because of this, a crime, it is generally understood in the content of the crime.

Because the crime is crime names, charges itself is not identify and explain the specific constitutive elements of crime evidence; in other words, in determining the specific elements of crime, the relevant provisions of the criminal law should expressly counts, as well as other relevant provisions of the general provisions of content as the basis, and not directly to the charges as the basis to determine the specific elements. Especially in the determination of charges do not reflect the nature and structure of crime, to determine the elements will lead to deviation according to the crime. For example,If we ignore the "criminal law" article360Provisions, direct constitutive requirements of the crime is determined according to the "crime of spreading venereal diseases" charges, the specific risk has the spread of sexually transmitted diseases will require the subjective intention, with the spread of sexually transmitted diseases objectively; if according to the "criminal law" article360The provisions of the elements of the crime, is not caused by the unreasonable demands.

(two) charges classification.

The crime classification, does not refer to the specific provisions of criminal law which the accusation, but induces the types of existing charges, to further clarify the meaning of the correct application of charges, charges. In general, charges can be divided into the following categories:

1Such charges

Class is the general name for a type of crime. In China's criminal law, crime is similar to the class of object of crime (or similar to the law benefits) as the standard for general, there are ten kinds of charges. Such charges, including all the specific charges with the nature. Therefore, understanding the nature category accusation is helpful to understand the specific crime. In the criminal law, charges is the chapter title, there is no specific crime and the legal punishment. Understand the charges, is helpful to understand the specific constitutive elements of crime. Because of the reality of the crime are specific, so the charges can not be convicted to according to the reference, not according to the class of convicted.

Specific charges is the name of a variety of specific crime. Each specific crime has its definition, constitution of crime and the legal punishment. The norm of the specific provisions of specific charges and the legal punishment, is a typical crime specification. The specific charges of conviction to reference counts, only according to the specific convicted.

2The charges and charges, single choice, generally charges

Single count, the constitution of crime refers to the specific content of a single, only reflect one crime, can not be disassembled using. For example, the crime of intentional homicide, illegal fishing, aquatic products and other crimes. They are represented by the specific criminal acts, not possible to decompose them. Behavior violate a single charge, no doubt constitutes a crime. Most of China's criminal law of the crime is single.

Choice of crime, refers to the specific content of the constitution of crime is complex, reflecting the various criminal acts, can be summarized to use, can be disassembled using. For example, trafficking in women and children, it is a crime, but it includes behavior and trafficking of children abducted women's behavior, so can be decomposed into two. Select the accusation features can include a number of specific crimes, and avoids the complex specific charges.

Summary of crime refers to the specific content includes the constitution of crime is complex, reflecting the variety of crimes, but only briefly, can not be disassembled using. Such as credit card fraud, including the use of counterfeit credit card or using false identity cheat brought credit card, use of invalid credit card, credit card fraud others, malicious overdraft four kinds of behavior. Whether the perpetrator is the implementation of one or several kinds of behavior, all credit card fraud. Thus, in charge is a charge between charge and selection of single crime. From the crime itself has no choice point of view, it has characteristics of single charge; but from its contains a variety of behavior, only the implementation of one of them would constitute a crime, he has a choice.

(three) the determination of charges

The determination of charges has two meanings: one is the judicial organ to the crime happened to conviction of a crime, for which the crime. The two is how to summarize all kinds of concrete crimes according to the provisions of the criminal law of the crime. For example, the "criminal law" article238The provisions of article is summarized, the crime of illegal detention, or into the illegal deprivation of personal liberty? Of course, these two problems are closely related to. Here mainly focus on the latter meaning are discussed.

Regardless of how the crime happened in reality, we can in advance according to the provisions of the criminal law, summarizes the concrete criminal charges. If the specific charges to generalize is correct, the judicial organs in a conviction should fit the crime, can not arbitrarily change. In this sense, according to the provisions of the criminal code to generalize various specific criminal charges, is the premise of judicial authorities convicted correctly, so it has very important significance.

The determination of charge actually includes two aspects: first, determine the provisions of certain provisions of criminal law is a crime or several crimes. For example, "criminal law" article277Regulation is a crime (a crime) or four crime (four charges) second, determining the name of each specific crime. For example, "criminal law" article360Article1Paragraph of crime, crime of spreading venereal diseases is summarized as appropriate, or summarized into prostitution, whoring sin disease?

Determine the charges should be paid attention to when the charges legitimacy, scientific and general. Now, the theory of criminal law by judicial interpretation to determine.      

Three, the legal punishment

(a) the concept of statutory sentence

The so-called legal punishment, is refers to the specific provisions of criminal law and criminal law norms in specific crime prescribed penalty and punishment (Criminal amplitude). The general provisions of criminal law provisions of the five basic and four additional punishment. Criminal law and special law in legal punishment, in accordance with the damage degree of specific crimes in accordance with the provisions of the general principles of criminal law, and determine the kinds of punishment and the punishment.

Statutory penalty punishment is not the same concept, a penalty which may have only one kind of punishment, may also include some kind of punishment. For example, "criminal law" article232The provisions of the crime of intentional homicide, there are two legal punishment, a punishment for "before the death penalty, life imprisonment, or for more than ten years in prison", which contains three kinds of punishment, but should be considered only as a penalty, but we can't think that there are three legal punishment. Therefore, when applied to this legal punishment mitigated punishment, can only be sentenced to less than10Years in prison for criminal law. Sentenced to death with reprieve, life imprisonment, or10Years or more in prison, not belonging to the mitigation of punishment.

Statutory sentence to reflect the state of

Negative evaluation on crime and criminals condemned attitude reflects the extent of harm; evaluation of national team of crime. National legal punishment for specific crime, is actually from the criminal legislation on the crime to the principle of practice. The criminal legislation on the crime to adapt, is the premise of crime criminal justice on the adaptation of the. This shows, if the legal punishment in the criminal justice does not adapt to the situation, can't adapt to the crime; on the other hand, hair fixed penalty is the legal basis for the people's court for sentencing, namely, under normal circumstances, the people's court only in the range of legal punishment commensurate with the crime within the kinds of punishment and the punishment degree.

(two) kinds of statutory penalty

1The absolute determination of legal punishment. The absolute determination of legal penalty, is referred to in the provisions only prescribed punishment for a single and fixed punishment. "Criminal law" article121Article: "by the violence, coercion or other methods to hijack aircraft, department for more than ten years of fixed-term imprisonment or life imprisonment; causing serious injury, death or the aircraft suffered serious damage, death penalty." It should be considered, the line of paragraph is absolutely prescribed penalty. On one hand, it is only for the crime of hijacking aircraft "causing serious injury, death or serious damage to the aircraft" situation, and not against this kind of crime to Russia all situations; on the other hand, it is not out of distrust of the judge, but because legislators think and the results on the hijacked aircraft crime, should and can only be sentenced to death.

2To determine the relative legal punishment. To determine the relative legal punishment, refers to certain kinds of punishment and the punishment prescribed in provisions, and clearly defined the maximum punishment and minimum punishment. Its characteristic is the legislation to determine the penalty and punishment, there are specific judicial discretion. The legal punishment that adapt to the actual situation of our country, to facilitate the coordination of unified legal system; to adapt to the need to punish crime, to implement differentiated policies; adapt to different circumstances of specific crimes, is conducive to the practice principle of suiting punishment to crime; for the change extent of harm of crime, is conducive to the relative stability of the criminal law. Because of China's criminal law provisions are usually determine the relative legal punishment, it is necessary to make specific classification of legal penalty of this.

(1The maximum statutory penalty provisions). The specific standard only provides maximum penalty, minimum penalty is determined according to the provisions of the general provisions of the criminal code. For example, "criminal law" article433Article1The preceding paragraph paragraph: "the war spread rumours to mislead people, shake the morale of troops, and three years in prison." In accordance with the general rules of the criminal law article45Provisions, a prison for minimum period6Month. Therefore, the people's court shall6More than a month3Years within the range of discretion of punishment. In accordance with the "criminal law" article99Provisions, "above", "below" includes the number.

(2Minimum statutory penalty provisions). The specific standard only requires minimum penalty, the maximum penalty shall be determined according to the general. For example, "criminal law" article295Regulation: "impart crime method... .If the circumstances are serious, department for more than five years in prison." According to the general rules of the criminal law article45Provisions, a maximum sentence in prison for15Years. So, the people's court shall5Years or above15Years within the range that sentence.

(3Provisions of the supreme limit) and the minimum statutory penalty. The specification also provides a maximum sentence of punishment and the minimum sentence, no need to determine the maximum and the minimum sentence according to the provisions of the general provisions of the criminal code. For example, "criminal law" article118Regulation: "destroy electric power, gas or other inflammable or explosive equipment, endangers public security, if serious consequences have not yet resulted, at more than three years to ten years in prison." Obviously, the people's court shall decide the sentence in this range.

The above three to determine the relative legal punishment is mainly aimed at the prison, not because the death penalty punishment and imprisonment, criminal detention, control and smaller amplitude term of deprivation of political rights, without detailed provisions in the specific provisions, direct discretion can according to the general provisions of the criminal code period.

(4More than two kinds of punishment) regulations or provisions of more than two kinds of punishment and the provisions of additional punishment prescribed punishment. Due to the provisions of the law more than two, select the permissions the people's court has not only the sentence, and the sentence of the selected permission. In the more than two kinds of punishment, the sentence can be divided into the three cases. For example, "criminal law" article275The preceding paragraph: "the deliberate destruction of public or private property, the amount is large or if the circumstances are serious, is less than three years imprisonment, criminal detention or a fine." It provides two basic and a supplementary punishment, the people's court may choose one in these three kinds of punishment in the measurement of penalty. Because the legal punishment by the choice of several legal penalty, so called the selection of statutory punishment.

3The legal punishment, floating

Floating legal punishment, also known as the machine to torture, is a specific period of the legally prescribed punishment and the specific number is not fixed, but in not according to the standard lifting certain, in a relatively uncertain moving state. "Criminal law" article227The provisions on the crime, but tickets, tickets crime, impose or single ticket price1Times5Times of the sum. Floating legal punishment has the following characteristics:

(1) induced in the fine punishment, apparently because of the amount of the fine penalty can be determined according to the provisions of the criminal law because of a certain fact standard. (2) just for economic crime, property crime, the crime of other difficult if not impossible floating penalty provisions. (3) penalty (Fa Jin) the specific rate (the number of) according to certain facts of the case to determine. This is floating legal punishment and to determine the relative difference between the legal punishment. To determine the relative legal punishment in criminal law, whether the case or not, people can know in advance the specific range of punishment and criminal law; floating legal punishment, only to the particular facts of criminal law, to the specific range that penalty. So, floating legal punishment is different from the relatively definite penalty. The fine penalty provisions for floating penalty, is conducive to reflect the principle of suiting punishment to crime; to consider the economic situation of criminal; is conducive to the stability of the criminal law.

(three) the difference between statutory sentence and punishment, execution of punishment announcement

The people's court shall sentence is executed declaration of specific criminal verdict penalty. Legal penalty is different from punishment. Legal penalty is the legislature to determine in the formulation of criminal law, punishment is the judicial organ to determine in the trial of specific cases; legal punishment are the choice of penalty and punishment, punishment is only a specific kind of punishment and the punishment. But the punishment must be legal punishment as the basis, even heavier, lighter, mitigated punishment, but also to the legally prescribed punishment basis. Visible, the legal punishment is the regulation of legislation, enforcement of the punishment is applicable.

Execution of punishment is the actual execution of criminal penalty. As declared punishment announcement is the criminals should execute the penalty, the punishment is executed according to the. Execution of punishment is possible and announced penalty equal, may also lower than the declared punishment. For example, in the implementation process, because the criminals with repentance or meritorious circumstances and in accordance with the law enforcement punishment is less than when the sentence, sentence. Execution of punishment has the obvious difference with the statutory punishment: legal punishment is the criminal law penalty and punishment, execution of punishment is the actual execution of criminal penalty. Therefore, execution of punishment may be less than the statutory punishment. For example, a crime legal punishment3Years or above10Years in prison, the people's court sentenced criminals4Years in prison. Because criminals to repent and meritorious service in the serving process, according to the law of commutation2Years, such, enforcement punishment is2Years, below the minimum statutory penalty.

The third section Pay attention to criminal law and legal fiction

One, pay attention to the concept and characteristic of provisions

A notice is a prerequisite in criminal law has made the relevant provisions of the regulations, prompt attention to judicial personnel, judicial officers ignored. It has two basic characteristics:

First, pay attention to set up, does not change the content of the relevant provisions, but reiterated that the regulations related to the content of the notice; if not provided, and also has the corresponding applicable law according to the (treatment according to the relevant regulations). For example, "criminal law" article285With the286Bars are respectively provided the trespass on computer information system of crime and the crime of destroying computer information system; Chapter287Article: "the computer implementation of financial fraud, theft, corruption, embezzlement, theft of state secrets or other crimes, shall be convicted and punished." This is a notice, hand it to the judicial personnel's attention, all kinds of crimes in the use of computer in accordance with the relevant provisions, shall be convicted of financial fraud, theft, embezzlement, misappropriation of public funds crime punishment; not because of the provisions of the two kinds of computer crime, to use computer, master of financial fraud theft, corruption, embezzlement and other crimes shall be punished with computer crime; on the other hand, even in the absence of this provision, the implementation of the use of computer crime, should also be in accordance with the relevant provisions of the criminal law of conviction and punishment. Visible according to the notice, did not make any amendment and supplement to the relevant provisions.

Specifically, "criminal law" article287Provisions, and not on the financial fraud, theft, embezzlement, misappropriation of public funds, ramming the state secrets and the constitutive elements of the crime with special content or reduce some elements.

Second, pay attention to rules only suggestive, the presentation of the content and the content of the relevant provisions

At the same time, and thus will not lead to the original is not in conformity with the relevant provisions shall be punished in accordance with the relevant provisions of the act.

In other words, if the notice pointed out: "toAAction should be in a crime ", so, only when theAAct is fully consistent with a crime, to beAAct as a crime. For example, "criminal law" article163The provisions of the preceding two paragraphs of the company, enterprise, unit personnel bribery, No.3Paragraph, state functionaries "former two acts, in accordance with the provisions of law 385th, article 386th convicted and punished." Obviously, only when the state personnel act is fully consistent with the "criminal law" article385As stipulated in the constitution of the crime elements, can be punished for taking bribes; if the working personnel of the state itself does not comply with the "criminal law" article385The provisions of article, they shall not be regarded as the crime of accepting bribes. So, No.163Article3Money is a notice, it does not lead to the original does not meet the requirements of bribery behavior is also identified as the crime of accepting bribes.

Two, the concept and characteristics of the law

Legal fiction (or legal fiction) is different, its characteristic is the result didn't meet certain provisions of the act also dealt with in accordance with the provisions of. "Science fiction: intentionally will know is different, as the same.......Legal fiction is often the goal: the constituent elements (T1) the provision made, applicable to other elements (T2)." In other words, in the legal fiction of the occasion, although the legislator Ming ZhiT2AndT1In fact is not exactly the same, but for some purpose still forT2Endowed withT1The same legal effect, thus indicating the applicable law, theT2AsT1The same legal effect, thus indicating the applicable law, theT2AsT1A case, onT2ApplicableT1Legal provisions. For example, "criminal law" article269Article cabinet; "theft, fraud, robbery, for booty, resist arrest or destroy criminal evidence and on the spot the use of violence or threats of violence, in accordance with the provisions of article 263rd convicted and punished." This is the legal fiction. Even if a behavior that does not comply with the relevant provisions of the criminal law, but the special conditions prescribed in the criminal law must be punished according to the relevant provisions under the.

Three, distinguish the provision of attention and legal significance.

Distinguish the provision of attention and legal knowledge to the basic meaning of the rule is clear, whether corrected or supplementary regulations or provisions, whether will lead to different behavior equated. In other words, some rules as a legal fiction or provision of attention, will lead to different applications, thus forming the conclusion that different.

For example, "criminal law" article247The preceding paragraph the crime and violence evidence of the crime of torture to extract confessions; after the paragraph: "cause disability, death, convicted in accordance with the provisions of law 230th, article 232nd shall be given a heavier punishment." If you think this provision belongs to the provision of attention, then, to torture to extract confessions or evidence of acts of violence, in order to murder conviction and punishment conditions, in addition to the requirements of the act causing death, also requires that the subjective behavior has a murderer intentionally. If you think this provision belongs to the legal fiction, then, as long as it is a torture to extract confessions or evidence of violence causing death, regardless of subjective behavior that has no intention to kill, must be characterized as a crime of intentional homicide; in other words, although this behavior was not consistent with the establishment of conditions of the crime of intentional homicide, but the law endows the intentional homicide crime's legal effect.

The sixth chapter Remove the crime reasons

Remove the crime reasons, refers to the behavior although caused some damage results or dangerous state in the objective, objective elements found on the surface of some crime, the social harmfulness but virtually no crime, does not conform to the crime constitution crime according to law, no matter. Criminal law expressly provides for self-defense, emergency hedge two reasons to exclude the crime. In addition, there are some non statutory crime reasons.

The first section Just Cause

One, the concept of justifiable defense

According to the "criminal law" article20The provisions of article, self-defense, refers to the protection of national, public interest, the person himself or herself or others, property and other legitimate rights from being infringed, adopt the measures to do harm to the unlawful infringer, suppression of unlawful acts against the. Justifiable defense shall not bear criminal responsibility.

The essence of justifiable defence is unlawful infringement, the protection of law, and the justifiable defense is all about Q & A, to grasp the core content. The basic characteristics of justifiable defense is, in legal interest is infringed, adopt the measures to do harm to the unlawful infringer, unlawful infringement, the protection of law.

"Criminal law" stipulates two kinds: one is the justifiable defense20Article1The general provisions of justifiable defense, undue defence: but the problem20Article3Special justifiable defense paragraph (non excessive defense).

Two, the condition of justifiable defense

The justifiable defense here, refers to the general justifiable defense. Justifiable defence must meet certain conditions, otherwise it will cause unlawful infringement new.

(a) there is illegal violation of reality

The causes of the condition of justifiable defense unlawful infringement of reality

The unlawful infringement or unlawful infringement, including criminal acts and other illegal acts. The criminal use of the word "illegal", without the use of the word "crime", that of other illegal behavior can be justifiable defense. But, not for any illegal and criminal behavior can be defensive, just for those aggressive, destructive, the urgency of unlawful infringement, taken in self-defense can reduce or avoid the harm result of the case, should only in self-defence. The unlawful infringement should be unlawful infringement people implementation.

Family farming animal is feeding the people for unlawful infringement of tool, the animal killed or wounded, in fact belongs to the method used to unlawful infringement of property damage caused by justifiable defense.

The unlawful infringement is not limited to unlawful infringement act. For the illegal omission, if by not only as a people to fulfill their obligations, the need for self-defenseIDECan also be used for self-defense. The unlawful infringement is not limited to the unlawful infringement intentionally, for infringement of negligence, may also be justifiable defense.

It should be considered, as the object of justifiable defense "unlawful infringement" and as the crime condition of "illegal" is not the same meaning, namely for crime and illegal actions required by the "illegal" and "illegal" as the object of justifiable defense shall make a different understanding. Justifiable defence is not unlawful infringement sanctions, the protection of the interests of law means but against unlawful infringement has taken, so can not be like the sanctions that crime and delinquency, requirement of self-defense against unlawful infringement has subjective and objective unity. So, for the legal age, did not reach has no violations of human identification and control ability, can implement justifiable defense. But it should be limited as much as possible and where necessary.

The infringement resulting can justifiable defense, was not justifiable defense.

Mutual fight when both sides is not justifiable defense. Must be unlawful infringement is a reality, if there is no infringement, but the behavior of people mistakenly believe that the existence of unlawful infringement, so the so-called defense, which belongs to the imaginary defense. Imaginary defense is not justifiable defense, if the actor has subjective fault, and the criminal law as negligent crime, according to criminal negligence; if the actor has no subjective fault, according to the accident. As for the deliberate targeting legitimate behavior "counterattack" behavior (such as violence hampers national office working personnel performing official duties), is not imaginary defense, but a deliberate crime.

(two) being infringed

Being violated, the law is in urgent infringed or threatened, the defense behavior becomes a necessary means to protect the legal interests of the. Being violated, refers to unlawful infringement has begun and has not yet ended.

The start time of the illegal violation, in general, shall be unlawful infringement people begun to implement the illegal infringement to start, but the real threat in the infringement is very obvious, urgent, to proceed with the implementation of later than to reduce or avoid the harm results, should also be considered unlawful infringement has begun. Some crime in preparation, relative to other crime belongs to the already started to implement the behavior, in this case should be considered unlawful infringement has begun. For example, to kill and breaking into others' houses, house breaking in unlawful infringement people at the beginning, can be in already illegal encroachment behavior of justifiable defense.

The end time of the illegal violation, essentially is fingering PE is no longer in urgent, realistic infringement, threat, or unlawful infringement has not (to) against or threats of law, specific performance for the following situations: unlawful infringement people have been making clothing, many people have lost the ability against infringement, unlawful infringement people have automatically terminated the unlawful infringement, infringement people have fled the scene, acts of unlawful infringement has caused harm results and not likely to harm result is more serious. The robber violent robbery property, robbery crime has been accomplished, but on the spot against the robber to violent counterattack to retake the property, should be considered justifiable defense.

The establishment of unlawful infringement defense set the defense may happen in the future, because of security, illegal violation of reality do not yet exist, of course not self-defense; in the establishment, did not encounter unlawful infringement, defense device failed to stop the illegal infringement action, nor is when the defense; set up, because of some special reasons for damage innocent of interests, of course, is not justifiable defense; however, the establishment of defense device, met being infringed, the device for the ongoing illegal violations play to stop the illegal infringement, and did not exceed the limits of necessity, it should be considered justifiable defense. Risk by defense apparatus due to set up defensive Zhang Zhi behavior set up this bear. Defense device causes innocent casualties, the establishment of who should bear the corresponding legal responsibility; if the defense device of endangering public safety, is forbidden by law.

Without prejudice to have not started or has ended, the so-called "defense", known as the defense is not appropriate. The defense is not appropriate in one of two ways: one is hurt or advance advance defense, two after injuring or afterwards defense. The defense is not timely to constitute a crime, criminal responsibility shall be borne.

(three) for defense against unlawful infringement people i.

In the premise condition with justifiable defense down, only for defense against unlawful infringement people i. This is the essence of self-defense decision. Justifiable defence is the unlawful infringement, the protection of law act, unlawful infringement is directly implemented by the perpetrator, the defense against unlawful infringement, the infringement people no longer continue to implement the unlawful infringement, it may stop the illegal infringement, the protection of law. Love even in common breach of criminal case, also can only defense against the ongoing unlawful infringement people, not to the ongoing unlawful infringement people for defense.

For defense includes two kinds of situations against unlawful infringement people: one is for the aggrieved person for defense, such as bound unlawful infringement of the human body, against illegal caused casualties. Two against unlawful infringement people's property for defense, i.e. when the illegal use of their property as crime tool or means, if able to destroy their property to prevent unlawful infringement, the purpose of protecting legal interests, you can through the destruction of their property and were positive when the defense.

The defense behavior itself may have violated the person or property caused real damage, may also have the risk of damage. The establishment of justifiable defense is not to defense behavior actually ruled unlawful infringement is the premise. In other words, so long as has the possibility and necessity of exclusion of illegal violation, even if the violation does not rule out objectively, also remains justifiable defense. For example, in self-defence to snatch the ongoing behavior, even if the unlawful infringement people still take a property, also founded the justifiable defense.

The so-called defense against the third person, should be considered to deal with different situations. If intentional so-called defense against the third party, it should be dealt with as a crime; if mistakenly believe that third is the so-called defense against unscrupulous people, defense to deal with the imaginary.

(four) was not significantly exceeds the limits of necessity and causes serious damage.

Excessive defense must not obviously exceeds the limits of necessity and causes serious damage, or is of excessive defense. The "necessary", should be to stop the illegal infringement, necessary to protect the legal interests standard. As to whether the "must", it should be judged by a comprehensive analysis of the case. On the one hand to analyze the two means, strength, and the strength of the personnel at the scene, the objective environment and situation. Means of defence is usually determined by the objective environment field, the defender could obtain the most comfortable tool in the field, not demand the defend people choose mild tools at the site. The question is how to use the defense tools that striking position and strength. Therefore, should be based on objective conditions, people should judge the defense, in the circumstances can control defense strength. On the other hand, caused by the nature of legal interests and defensive behavior but also weigh defensive behavior to protect the damage consequence, namely between the protection of the legal interests and damage the interests of the poor, not too big, not cause unlawful infringement in order to protect the rights of their smile and serious injury or death.

And especially exceeds the limits of necessity, is unjustifiable self-defense, only the "obvious" exceeds the limits of necessity and causes serious damage, is unjustifiable defense. First of all, slightly exceeds the limits of necessity and not established over defense, only can be clear, easily identified as exceeds the necessary limit, it may belong to excessive defense. Secondly, the general damage was not caused by excessive defense, only to cause significant harm, it may belong to excessive defense. Finally, the limits of necessity and condition of the justifiable defense shall not apply for to violent crime to seriously endanger the physical safety defence (non excessive defense).

Three, excessive defense and its criminal responsibility

Act of defense exceeds the limits of necessity and causes serious damage, which belongs to the excessive defense. Justifiable defense is not an independent crime, and should be based on the constitutive elements of crime to determine charges. As for how to determine the charges, in addition to considering the defensive nature when significant damage caused in the objective of outside, but also on the subjective mental state defense is offence form. Excessive defense in the subjective negligence, but does not rule out the possibility of indirect intent. If the subjective fault only, should be regarded as the crime of negligence causing death; if for indirect intention, is established the crime of intentional homicide.

For excessive defense, where appropriate, reduced or exempted from punishment.

Four, special justifiable defense

In view of the serious social violent crime of serious harm, in order to better protect citizens' rights of the person, "criminal law" article20Article3Paragraph of special justifiable defense (with or without a justifiable defence). That is the ongoing assault, murder, robbery, rape, kidnapping and other serious violent crimes endangering personal safety, to take defensive actions, against illegal caused casualties, it is not undue defence, and he shall not bear criminal responsibility.

The special condition of justifiable defense, in addition to the requirements of being violated, defends the person to have the defense consciousness, for illegal violate my defense, more important is, the ongoing assault, murder, robbery, rape, kidnapping and other serious endanger the personal safety of violent crime all defensive. Should pay attention to the following points: (on the CD1) for non violent crime, as well as the unlawful acts of violence, the provisions do not apply to. (2) for minor violent crime or violence crime, the provisions do not apply; only in self-defence to serious violence crime of endangering the human body safety, no excessive defense problems; the "violence" generally refers to the boundaries of killing in the injured not clear of violent crime. (3) is not for any assault, murder, robbery, rape, kidnapping and other violent crimes for defense these Provisions are applicable, only when the violent crimes that seriously endangers his personal safety, the above provisions shall apply. (4) violent crime of serious, is not limited to the criminal law provisions cited, also includes other serious endanger the personal safety of violent crime, such as robbery guns, hijacked aircraft etc.. (5) in violent crime of serious has ended, the behavior of the unlawful infringement people kill killer, the provisions do not apply to.

For example, a serious use violence robs B property, B for defense have stopped hijacking a. In this case, B shall not continue to "defense" caused a casualty. It belongs to the afterwards defense.

 

 

The second section The emergency

One, the concept of the emergency

According to the "criminal law" article21The provisions of article, emergency, refers to the state, the public interest, the person himself or herself or others, property and other rights from danger happening, not causing harm to the other smaller or equal rights act. Flood diversion is emergency case. Emergency does not bear criminal responsibility.

The essence of emergency is to avoid the real danger, larger or equal protection of law. The basic characteristics of the emergency is in danger, the protection of the law the legal interest and can not take other measures to avoid damage, had another smaller or equal rights. Visible, the act of necessity they caused some legal interests of the damage, but linked to the specific situation to see, from the behavior of the whole to consider, the behavior of no harm to the society, also don't accord with the constitutive elements of the crime.

Two, the emergency conditions

Necessity is the damage to a law a legal interest protection, the justifiable defense and damage the interests of the illegal infringement to protect legal interests have principle distinction, so training emergency than the condition of justifiable defense is more strict.

(a) law facing real danger

The emergency requires legal interest is in danger of the objective existence of the threat, the legal risk may suffer damage in concrete.

Only in this case, it is needed to carry out emergency. The risk sources are dangerous; spontaneous force of nature (such as to flood), dangerous animal attacks, special circumstances such as disease risk, risk of harm behavior of human.

The real danger is not including the person who is charged with specific responsibility, duty in the business I risk. For example, the people's police on duty in the face of the criminal illegal violation, not for their own interests to the emergency; in case of fire, fire personnel are not in order to avoid the fire of my risk, and take the emergency.

If the danger is not in fact exist, and the behavior of people mistakenly think of danger, so-called hedging behavior, speculative hedge; therefore, should be dealt with according to the principle of imaginary defense.

(two) the danger happening.

(three) for having damage another legal interest

Must be unavoidable, refers to the legal risk is happening, no other method can send a dangerous, only harm another smaller or equal rights, in order to protect the legal interest of danger. Therefore, not only in may adopt or have no other reasonable method, allowed the emergency. This is an important distinction between emergency and self-defense. In May or has other legal ways to avoid dangerous situations, actions to take emergency action, should be considered as caused by subjective state and objective behavior of human injury were identified as negligent crime or accident crime.

Damage to another legal interest, usually refers to damage the third law, rather than to the dangerous source of damage. For example, in the beast attack, enter other housing shelter, which belongs to the emergency.

(four) did not exceed the limits of necessity cause undue damage.

Emergency necessary limit, is the premise to the damage caused by no more than to avoid damage, enough to eliminate the risk to limit. The necessity is the conflict between two kinds of law, it should be as small as possible damage to protect another legal interest, which must be based on the actual situation, both to protect a law, and the other legal interests of the damage to a minimum. Therefore, first of all, risk aversion caused less damage than to avoid damage, may exceed the limits of necessity. Secondly, no damage equal rights, not necessarily exceeds the necessary limits. Because the whole, benefit and no harm. If so, it should not take this behavior to recognize for the crime. Visible, emergency necessary and justifiable defense than to limit, there is a significant difference in.

Two, excessive necessity and its criminal responsibility.

Risk aversion exceeds the limits of necessity and causes undue damage, the establishment of excessive hedge. It is not an independent accusation, it can not be "avoiding excessive crime", it is not "excessive hedge serious injury crime", "avoiding excessive death" and other charges. Hedging behavior consistent with what the constitutive elements of the crime, as a crime. For avoiding excessive, should be discretionary mitigated punishment or be exempted from punishment.

The third section Other causes of crime

A, act

    Act, refers to the provisions of statute law, decrees, regulations on the exercise of power, as or assume obligations. Because the law is the law itself are allowed and isolated, punishment order as part of behavior, it is legal, is not a crime.

Legal behavior includes four kinds of behavior: one is the legal policy based reason to exclude criminal conduct, that is some kind of behavior should be crime, but a law based on policy considerations, will act the provisions as legal act. The lottery. Two is the law intended to express the legality conditions, namely a kind of behavior would not have crime, but a law, meet certain conditions is legal. Three is the authority (post) behavior, public personnel according to the law enforcement duties or perform their duties behavior, including the implementation of the provisions of the law directly based on behavior, including superior position commands are implemented based on the behavior of. If the judicial personnel to arrest suspects. Four is the power (Compulsory) behavior, namely in the legal rights as citizens (Compulsory) behavior, such as general people over the criminal.

The implementation of the provisions of the law is the law behavior, decrees, regulations based on behavior, therefore, if there is no law, the implementation of the behavior laws, regulations or according to, although there are some according to the regulations but in the entity or a procedure violated the law, regulations or rules, it does not belong to the legal behavior, the opposite may constitute a crime.

Two, the proper business behavior.

The proper business behavior, although there is no law, refers to the laws, regulations, but in social life is considered to be the proper business behavior. Business is the social status based on repeated behavior, but not because it is a "business" is not the crime, but because "right" to exclude crime. In general, the reporter activity reporting belongs to the proper business behavior, but journalists fabricating facts to slander others, does not exclude the establishment of crime. Therefore, only the business itself is legitimate, but no more than the scope of business, to eliminate crime.

The doctor promised or presumed patient based commitment, adopt the method that medicine, medical behavior objectively injury patients bodyIE, is the proper business behavior, but the crime conditions more stringent; treatment behavior is recognized in medicine, its essence is a effective and necessary safety, there must be a commitment or presumption; patients with promises to cure disease for the purpose. Human trials, switching operation, does not belong to the treatment behavior.

Three, the commitment of the victim

The victim's promise, to meet certain conditions, the crime can eliminate damages the interests of behavior. The victim requests or licensing act against the law, that the abandoned the law benefit. Only in violation of victim's will is the premise of the crime, criminal victim's commitment can exclude the behavior, such as illegal burglary, theft etc.. Discussed here is limited to the situation.

The victim's behavior when the following conditions are met, to exclude the behavior of crime:

(1) effective commitment to commitment to the legal interests of the premise is right. But even committed against their own interests, but also have certain limit. If the victim's commitment and the killing of the behavior of others, still holds the crime of intentional homicide. (2) commitment must on matters of commitment, with understanding the meaning of the range. (3) commitment is victim's real will, commitment, jape of strong or coercion commitments based on, does not affect the behavior of crime. But if it is about commitment motivation mistake, should promise that has the effect of excluding criminal matter, become. Women think that sex with each other, to facilitate the husband can be released from prison; but after sex, each other did not release her husband. This error only motivation and commitment, it does not affect its validity, i.e. each other's behavior was not rape.

On the contrary, if be to abandon the interests of types, scope or the risk of wrong understandings, the commitment is invalid. Behavior of people posing as the woman's husband to implement rape behavior, the night of the women thought that each other is her husband agreed to have sexual relations, the commitment is invalid, the other acts constitute the crime of rape.

(4There must indeed promise). (5At the latest) commitment must exist in the result, the victim in the results occurred before the change commitment, then the original commitment is invalid. After the commitment does not affect the crime; otherwise the state prosecution will be the will of the people to the right. (6The commitment to the implementation of the act) shall not be more than commitment. (7The commitment) act itself must not violate the provisions of the law, otherwise it may set up other crimes. For example, even if the women agreed to several people at the same time the licentious behavior, but if the number of people with no specific or most people may recognize the licentious behavior, although does not constitute the crime of rape, but cannot exclude the establishment of group licentiousness crime.

Four, self-help behavior

Self-help behavior, is fingering PE is infringed upon, in through legal procedures, rely on state organs may not or is obviously difficult to restore conditions, relying on its own strength relief law behavior.

Self help behavior must meet the following conditions: (1) law has been illegal violation, whether the violation is just the end or after a certain period of time. This is the key difference between the self-help behavior and justifiable defense. (2) through legal procedures, rely on state organs may not or is obviously difficult to restore legal interests infringement. (3The method has the appropriate relief), caused by the infringement and relief of the legal interest of considerable.

Five, the conflict of obligations

The conflict of obligations, refers to the existence of more than two incompatible duties, in order to certain obligations of them, and to perform other duties situation. The law in order to safeguard the defendant's legal interests in court, no leakage of the privacy of others. The conflict of obligations have similarities with the emergency, but necessity is a kind of obligation conflict as a form, is not as a form of.

The conflict of obligations must have two basic conditions: first, there are more than two obligations. Secondly, must weigh the severity of obligations, which must be in order to fulfill obligations, to give up non important obligations; in order to perform non important obligations and abandon the important duty, may constitute the crime.

The seventh chapter intent crime

For the crime, not only to know what behavior does not constitute a crime and understanding of what constitutes a crime behavior from the opposite side from the front, but also to know all kinds of crime forms. Although the crime can be divided into intentional crime and negligent crime, but crime only founded or not, and the intentional crime based on the criminal, also has the preparation for a crime, attempted crime, the discontinuance of crime, crime form.

The first section Intent crime overview

The concept, the attempted crime

Intent crime refers to an intentional crime in its development process, due to some reason appeared ending the state, namely the preparatory crime, attempted crime, the discontinuance of crime and accomplished offence.

Because the theory of criminal law is generally believed that the specific provisions of criminal law to crime crime pattern, so the general provisions of criminal law usually only on preparatory crime, attempted crime and discontinuance of crime, and the three form called the attempted intentional crime unfinished form.

Crime is a process, but any crime is not can successfully realized, not any criminal who can achieve the desired objective. So, there will be a different form of intentional crime.

Intent crime can only appear in the criminal process, a state in the process of crime other than the crime, not deliberately. For example, a with B there, but has killed another criminal intention, but after repeated consideration to dispel the idea of killing a B. Because only has committed itself does not constitute a crime, depending on the meaning is not the crime process, therefore, a dispel the crimes, not the crime intentionally. Moreover, a C a D stolen property, stolen property will automatically return to Mou Ding days after. This is the implementation of a crime behavior, also not a deliberate crime.

Intent crime in the crime process due to some reason to stop down the state, this stop is not a temporary pause, but the final stop, namely the crime for some reason can not continue to move forward. Therefore, intent crime, state crime is static, state crime not movement. On the same crime, the emergence of a crime, can't be another form of crime. Intent crime is not a part of the crime, crime but has been the implementation of the overall. Can not think of a part of a crime one implementation is the form of crime, and the other part is another form of crime.

Intent crime can only exist in the crime of criminal negligence, without criminal objective, the impossible crime preparatory behavior; no harm results, can not be set up in criminal negligence. So, criminal negligence crime, attempted crime and no crime discontinuance form. Due to negligence crime has not attempted, there is no need to affirm the accomplishment of a crime. So, for the crime of negligence, only the establishment of whether or not the problem, but not the accomplished offense and the attempted problems. Indirect intentional crime, can not be ready tool, created the conditions for the crime, in the absence of harmful consequences case, is also difficult to think that people have indirect intent. So, in general, the crime of indirect intent may not have the preparation for crime, criminal attempt and discontinuance of crime form.

Two, the attempted crime and crime stage

Intentional crime is the existing form, also exists phase. Stage is closely connected with the concept of process, process is the continuous development and change of things state in time and space, any things form a process from production, development to extinction. Phase is divided paragraph in the scheme of things, that is to say, the stage is all the things in the process of development with different characteristics, the specific process of mutual connection. In general, direct intentional crime crime crime preparatory stage and implementation stage. Crime is the starting point of the implementation stage, the crime is a sign of action completed. Preparation for a crime and crime is closely linked to the former stage, preparation stage for the latter, the latter is the development of. In the act of preparatory acts preparatory stage, in the implementation stage behavior is to implement behavior.

Crime and criminal phase interaction, interdependence, mutual restriction. The criminal preparation stage only preparation for a crime and discontinuation of a crime form; the implementation stage in crime, attempted crime only appear, crime and discontinuation of crime. Crime is a behavior, crime stage is a dynamic development process; crime did not have the continuity, crime stage is the continuity; a deliberate crime may go through several stages, but may not appear in several forms.

The second section Preparatory crime

 

 

A crime in preparation, the concept and characteristics of

According to the "criminal law" article22Article1Paragraph, as a form of crime of preparatory crime, refers to the crime, preparation tools, manufacturing conditions, but due to reasons other than the behavior of the will of the people and failed to start the implementation of criminal cases. Accordingly, preparation for a crime has the following four characteristics:

(a) the subjective to crime

The establishment of crime, the subjective requirements for a crime. From the preparatory crime and crime stages of a relationship, here "to the crime" is actually in order to implement the crime, namely for the implementation of the crime. In order to crime, including for his crime (theory become the preparatory crime) in order to others to commit (theory known as the preparatory crime; others) for a crime is not an independent crime, but that the behavior person has clear criminal intention, because the act of intentionally dominate in the crime, in order to specific of the crime preparation tools, manufacturing conditions; in order to crime, that people in the prerequisite of criminal intent, aware of their preparation for the implementation of the service behavior is a behavior, to recognize the role of preparatory behavior occurrence results; in order to crime, show that the perpetrators in the psychological domination. Behavior is the preparatory behavior for a crime, and criminal intention, criminal intention formation that has essential distinction.

(two) carried out preparatory crime

Preparatory act is to create convenient conditions for the implementation of crime, in order to facilitate the smooth realization of harm behavior, such behavior is a part of the entire crime, if not due to some reason paused, preparatory acts will be further development to implement behavior, which resulted in the damage.

Therefore, preparatory acts of criminal law is to protect the legal interests purchased a threat. On the other hand, ready to act only to create convenient conditions for the act, and may not directly cause harm results act to create.

Preparation for crime of manufacturing conditions, but the criminal law, the preparatory act into two categories, namely preparation tool and manufacturing conditions. Prepare tools is in fact to commit manufacturing conditions, because is the most common preparation behavior, the criminal law to be special provisions. Manufacturing conditions, means that in addition to prepare tools other than everything for committing a crime of manufacturing conditions to prepare behavior, such as the investigation of crime and victim's whereabouts starting to place, where a crime to crime victims, decoy places.

(three) in fact failed to proceed with the implementation of crime

Preparation for a crime must be paused in the preparation stage, in fact failed to proceed with the implementation of crime. Failed to start the implementation of crime includes two conditions: one is the preparatory behavior is not complete, and therefore could not proceed with the implementation of crime; two is the preparatory behavior has been completed, but for some reason is unable to proceed with the implementation of crime.

(four) failed to proceed with the implementation of crime is due to reasons other than the will of the people

Preparatory crime paused, unable to proceed with the implementation of crime, must be due to reasons other than the behavior of the will of the people. If the behavior of people who gave up the preparatory behavior or not automatically started to commit a crime, is not true, and the suspension of crime.

These characteristics indicate that, preparation for a crime is different from the crime said. The crime that generally refers to the oral, written or other methods, the real intention of crime in the performance of the external behavior. Its characteristic is: the said person is a real criminal intent; said people with oral, written, gestures or other can make direct method to show intent crime; criminal intent is the crime intention was not pure, created the conditions for the crime. Preparation for a crime behavior and make a representation of the essential distinction: the preparatory behavior for a crime is to prepare tools, manufacturing conditions, to commit to promote the role of behavior, the criminal law to protect the legal interests and constitute a real threat; and expression of criminal intent and not to the implementation of crime play an important role, only with criminal intent act, the protection of criminal law does not constitute a real threat.

A,The criminal responsibility of the preparatory crime

According to the "criminal law" article22Article2Paragraph, the crime in preparation, can be accomplished crime shall lighter, mitigated punishment or be exempted from punishment. Obviously, the preparatory crime shall bear criminal responsibility. But because the preparatory crime has not started to commit a crime, caused no results, its social harmfulness is usually less than accomplished crime social hazardous nature, the preparatory crime, should be lenient. "To" express authorization of the legal norms, has allowed the license, meaning, but also shows that the criminal legislation opinion. Therefore, in general, to the preparatory crime accomplished crime, they shall be a mitigated punishment or be exempted from punishment. As for whether a lighter punishment or a mitigated punishment or be exempted from punishment, should be on the preparatory crime investigations to determine the entire case. The main consideration should be given to the plot: whether the preparatory crime has been completed, preparatory crime itself can lead to implement behavior caused great harm result, reflected in preparation for a crime behavior of subjective malignant size etc.. Under special circumstances, such as people prepared for particularly serious crimes, particularly bad, can not be a lighter, mitigated punishment or be exempted from punishment.

The third section The accomplishment of a crime

A concept, attempted crime

According to the "criminal law" article23Article1The provisions of paragraph, has already begun to crime, due to reasons other than the criminals will not succeed, is attempted crime. Our country criminal attempted to anti penalties not expressly limited to specific provisions, but the fact that most of the crime attempted are not as attempted crime punishment.

Attempted offense, the objective danger lies in the behavior of law against the. For the purpose of criminal law is to protect legal interests, accomplished offense because of acts against the law and punished, attempted crime is the act is dangerous because the law and punished, the attempted crime is dangerous. So, even in the presence of a crime, but if no law against the objective risk, nor as attempted crime will be punished.

Characteristics of two, attempted crime

According to the provisions of the criminal law, criminal attempt must have the following characteristics:

(a) has already started to commit a crime

To implement the behavior is the starting point; to mark the crime entered the implementation stage, the implementation of human behavior is a behavior; a part of itself is a behavior. Formally speaking, the behavior is the constitutive elements of crime in the specific provisions of the criminal law act, therefore, to mean the beginning of the implementation of specific provisions of the criminal law of the crime constitution behavior; in other words, began to implement the specific crime regulated by the criminal law elements of the act is the old hands. For example, began to implement the act of killing, is intentional homicide of public or private property; to steal, is to the crime of theft. In essence, only when a behavior is in imminent danger caused by legal interests, can be identified as to. For example, cause insurance accident insurance fraud in behavior, but without insurance fraud created the precondition; if the act has not been made after insurance accident insurance company, risk insurance financial order and the insurance company property infringement is not urgent; behavior person claims to insurance companies act or proposed to pay insurance gold the requested action, is the act of perpetrating. Only contact or close to the victim and began implementation of violence or coercion, can be identified as to. In order to fraud behavior of public and private to public and private property, and the first for forgery, forgery behavior itself may not make the property is in imminent danger, so is the preparatory behavior, began to use the fake document fraud, crime of fraud is to.

The provisions in the criminal law provisions of the act contains multiple link or a variety of forms, people began to implement any of these links or anything with a form of behavior, in principle should also be identified as to. For example, robbery crime contains two aspects, one is the use of violence, coercion or other compulsory measures, two is to obtain property. Therefore, when the perpetrator of violence or coercion to behavior, is has started the robbery. Moreover, trafficking in women and children, crime, including kidnapping, kidnapping, buying, trafficking, transport, transit and other forms of. So, when the behavior of people for the purpose of selling, began kidnapping, kidnapping, buying women, children, is the start of trafficking in women and children, crime, and not to be actors began selling is to.

However, because of the many specific crimes in specific provisions of criminal law, and the same specific crime behavior is not the same, such as homicide, the behavior of different people will take to kill different ways; therefore, in determining whether the actor started to commit a crime, should be judged according to different situations, different cases of crime. For example, to review whether the act had contact with or close to the object of crime, whether the actor has been used for criminal tools, whether the actor began using the manufacturing conditions, whether the implementation of behavior can directly cause the result of crime, and so on.

(two) the uncompleted crime

Unfinished crime, is obviously not accomplished crime. "Original meaning did not succeed" is evil purpose did not realize, therefore, in the direct intentional crime, unfinished crime, refers to the behavior of people wish harm result did not occur. For example, direct intentional homicide behavior, all want to kill death results; did not succeed, or performance for the murder itself has no end to implement the victim and no death, either as homicide although end but for some reason did not cause the victim's death. But, here called "the behavior people hope the harm result did not happen", not including the criminal law crime "objective" did not realize the situation. For example, according to the "criminal law" article152Provisions, crime of smuggling pornographic articles must be "for the purpose of making profits or communication". But the behavior of people from overseas will be obscene goods smuggled, should think harm results occur the behavior desired, as to whether the actor profit or whether it has been spread pornographic materials, does not affect the accomplishment of a crime was identified.

Note that, although the unfinished crime specific performance did not occur the behavior people hope the harm results occur, but this does not mean that every occurrence of the harmful consequences are already succeed (accomplished). Because of the nature of different types of crime, crime result is not the same. The same results, relative to the crime, is the elements of the results, compared with other crimes, not the elements of the results. For example, damage results relative to the crime of intentional injury, is the elements of the results, but compared to the crime of intentional homicide, also not constitute elements of the results. Therefore, in the case of damage results, relative to the crime of intentional injury, has been accomplished; but compared to the crime of intentional homicide, only the establishment of attempted.

Unfinished crime for two scenarios: one is, people have the crime to achieve all action to be accomplished by the end to implement, but due to reasons other than the criminals will not succeed (the completed attempt). If the offender to victims of food poisoning after putting poison, the victim is discovered by others after the hospital rescue out of danger. The alternative is a crime, because of the lack of causes beyond volition that meets all the action to be accomplished in the end to implement, so it did not succeed (not the completed attempt). For example, in the sword to kill, is the third uniforms. The completed attempt and not the completed attempt, reflecting the social harmfulness degree. Generally speaking, the former distance harmful consequences is close, and the latter from the harmful consequences far, therefore the former on criminal law protection of the interests of law violations are more severe than the latter, which should be considered in the sentencing.

(three) the uncompleted crime is due to reasons other than the will of the criminal element

For reasons other than the will of the criminal element, is always against the will of the criminal element, makes the crime can not be accomplished, or make people think not possible causes of crime accomplished thus forced to stop crime. In the attempt of crime situation, people hope to succeed will not change and give up, so did not succeed is in conflict with the criminal will. For reasons other than the criminals will include three cases:

1Inhibition of crime will, reason, that a certain fact that criminals think they have objectively impossible to commit a crime, which was forced to stop. Robbery, heard the alarm, because the behavior person thinks he has objectively impossible to commit, still belongs to the causes beyond volition, established the attempted robbery.

2The reason, inhibition of crime, which is one of the behavior person objectively impossible to commit a crime or not may cause the. Such behavior is a crime, by the third researchers found and stop.

3The reason of preventing crime, the behavior person, namely the thought should be the conduct of the end, but the accident prevented results. The behavior of the victim out into the water after, think the victim will die, but a passer-by victim.

Three the characteristics of attempted crime of the termination phase difference and respectively preparatory crime, crime, crime; only with the above three characteristics at the same time, the establishment of crime can be attempted.

Two,Criminal responsibility of crime

According to the "criminal law" article23Article2The provisions of paragraphs, for attempted offense, can be accomplished crime shall be given a lighter or mitigated punishment. First of all, the attempted crime shall bear criminal responsibility. Secondly, due to the provisions of the criminal law is the "can" lighter or mitigated punishment, thus to determine whether the attempted crime, be given a lighter or mitigated punishment. Finally, in determining a lighter or mitigated punishment circumstances, to further define the is a lighter punishment or mitigated punishment.

The fourth section The discontinuance of crime

The concept, the discontinuance of crime

According to the "criminal law" article24Provisions, in the crime process, gave up the crime or automatically and effectively prevent the result of crime, discontinuation of a crime refers to. The discontinuance of crime has two types: one is the crime preparation stage or in the implementation behavior is not the completed cases, gave up the crime; two is in the practices of love ending, automatically prevent the harm.

As an intentional crime discontinuance of crime, is refers to the behavior person has begun the implementation of crime and discontinuation of crime form. Suspended forms of crime and the suspension of the act itself is closely related: no act of suspension would not have the discontinuation of crime, discontinuation behavior is the decisive cause discontinuation of crime. Suspended forms of crime and discontinuation behavior itself also has the difference: the act of suspension is not in itself a crime in criminal law, but to encourage behavior; the discontinuation of crime is a crime, he shall bear criminal responsibility. In other words, the act of suspension before the behavior is a crime, the act shall bear criminal responsibility according to the facts, planting behavior itself belongs to the criminal law to encourage behavior, should be reduced or exempted punishment according to the.

Characteristics of two, the discontinuance of crime

The act of suspension is the decisive reason for discontinuation of a crime, the discontinuance of crime termination characteristics and characteristics of behavior becomes an exterior interior relationship, discusses the discontinuation conditions behavior itself, also explains the features of desistance of crime. As mentioned above, the act of suspension can be divided into different situations, but they have the same characteristics, so the combined paper.

(a) the time of termination

Stop must be occurred in the "crime" in the process, then, is to start in the crime crime presents may be terminated before the ending. "First show in the criminal process", the discontinuance of crime can occur in the crime preparation stage, implementation stage can also occur in the crime, this is an important distinction and preparation for a crime discontinuance of crime, attempted crime. "Also shows that in the criminal process", before the suspension of behavior in the criminal process, have is a crime, the criminal intention not to implement any of the crimes they give up crime intention, not the suspension of crime. "In the criminal process" also shows that, the crime has not formed the outcome, neither has been attempted, nor has been formed in preparation for a crime, but not been accomplished. Therefore, automatically restore crime, not the suspension of crime. Similarly, the attempted crime is not possible discontinuance of crime. For example, a kill B process, and ran away because of the arrival of the police, even if a later dispel continue to kill B idea, but because it has been attempted murder, it was not intentional homicide suspension.

(two) the automatic termination

The suspension of crime, the actor "automatic" abandon crime or "automatic" effective results in preventing crime. This is the discontinuance of crime and crime, attempted crime to distinguish in the subjective signs. Automatic termination, refers to the behavior of people to recognize the objective may be to continue the implementation of crime or may be accomplished, but voluntarily give up the original intention of crime. First of all, people recognize that fact may continue to implement the crime or may be accomplished. Secondly, the behavior to voluntarily give up the original intention of crime, crime occurs no longer hope, but hope that the result of crime does not occur. Distinguish between suspension and attempted can take such a formula: "can reach the goal and not to" is suspended, "to achieve objective and not" is attempted. For the "can" and "cannot", the general should be based on the understanding of human behavior as the standard to judge, as long as the behavior that may be accomplished rather than to achieve the accomplished offense, even if objectively impossible of accomplishment, but also suspended. Conversely, if people think that cannot be accomplished and give up, even if objectively may also accomplished, attempted.

The reason people desistance of crime are various, some sincere repentance, some because of the sympathy for the victims, some of the fear of punishment, some for leniency. So and so. On the one hand, will not cause discontinuation of crime behavior, as the reason will thus denies the automatic termination. On the other hand, is not because of the existence of objective obstacles to deny the automatic termination. Sometimes the person recognizes but at the same time that the objective obstacles are not enough to prevent its further crimes, but because of other reasons to give up the crime, can be identified as suspension.

(three) discontinued objectivity

Suspend is not just an inner state of change, also requires objectively suspension. The act of suspension is divided into two types: the criminal preparation stage and implement behavior has not been implemented in the end, as long as not to continue the implementation of behavior does not occur under the condition of the crime, suspend the behavior to give up to continue the implementation of crime, that is no longer continue to commit a crime. The actors have to be truly give up crime, rather than waiting for an opportunity to continue to implement the behavior. Should be noted is the behavior of people, waiver of repeated violations, is the discontinuance of crime. The action is sufficient to cause the result of crime after the crime behavior, the results did not happen, people also recognize the results have not occurred, recognizing also can continue to commit the crime, but based on some motivation to damage waiver, the suspension of crime, rather than attempt of crime.

In the act of perpetrating finished, do not take effective measures will result in the case of discontinuation of crime, the behavior way to take active and effective measures of crime occurs. To effectively prevent the result of crime behavior, people not to act independently as necessary, but the behavior must make a sincere effort, its behavior to prevent the occurrence of criminal results played a decisive role, otherwise the suspension of crime. For example, behavior in the fire behavior has not accomplished case, shouted "fire", and then they fled, even if people put out the fire, also can not think of discontinuation of crime belongs to the behavior of people in.

(four) the effectiveness of suspension

No matter what kind of suspension, must be no signs of accomplished offense of crime as a result. Although the actors gave up the crime or automatically take measures to prevent the occurrence, but if it happens as signs of accomplished offense of crime results, not the suspension of crime.

Human behavior to avoid results has made positive efforts, but the act itself occasionally cannot make the results or the behavior of others to prevent the result still holds, discontinuation of a crime. In general, the following three cases: (suspension of crime1The independent suspension) behavior prevents the result occurs, the suspension of crime. (2Cooperative behavior) suspension behavior of people with other people, to prevent the result occurs, as long as they can identify the behavior of people made a sincere effort, and the suspension of crime. (3Act of) people who gave up the crime in the criminal process, or automatically to take effective measures to prevent the results, and the results did not occur, even if the act itself sometimes failed to lead to result, or objectively completely because of the behavior of others to prevent the result, and the suspension of crime. Such behavior intended to kill, but its launch objectively poison does not reach usually lethal dose; in others found vomiting, very painful situations, people automatically others rushed to hospital; even if the do not resuscitate not death results, are suspended, rather than attempt. Because the behavior of people in recognizing the crime case can automatically take effective measures, the results did not occur, should think that accords with the essential feature of discontinuation of crime; otherwise it will lead to the unbalanced.

Of note, the suspension of crime does not require no crime results, but requires no signs of accomplished offense of crime as a result. For example, as a result of intentional homicide crime is the victim's death marks. Therefore, the discontinuance of crime is divided into suspend caused some of the result of crime and no crime results.

Four the characteristics of crime termination, which were distinguished with the preparatory crime, attempted crime, crime. Have these four characteristics, only the suspension of crime.

Three, discontinued criminal offenders

According to the "criminal law" article24Article2Subsection, where an offender, if no damage is caused, be exempted from punishment; damage is caused, be given a mitigated punishment. First of all, discontinuation of a crime shall bear criminal responsibility. Secondly, the discontinuation of a crime shall be respectively reduces the punishment. The so-called "no harm", should be understood as did not cause any crime results; the so-called "damage", should be understood as the result of crime, but caused no signs of accomplished offense of crime as a result.

The provisions of the criminal law of the discontinuation of crime remission of punishment, one is because the behavior of people to give up crime or effective results in preventing crime hungry behavior, the crime results did not occur, makes the social harm reduction; two is because the behavior person automatically denied, abandoned the original intention of crime, the subjective malicious behavior that people in reduced; three of the discontinuation of crime is remission of punishment, is conducive to encouraging criminal desistance of crime, the criminal mind, which is conducive to timely protection of legal interests, to avoid the actual damage to the law benefits.

The eighth chapter of joint crime

The previous discussion, largely to a single criminal case. The judicial practice, there are more than two people the situation of joint crime. Compared to the single individual crime, joint crime is a complicated crime, need special research.

The first section Overview of common crime

The concept, common crime

According to the "criminal law" article25Article1Subsection, a joint crime is an intentional crime committed by two or more persons jointly. This definition generalizes the intrinsic attribute of common crime, providing a legal basis for the punishment of crime, points out the direction for the theory of joint crime.

Criminal law about the provisions of common crime, to the ball we pay attention to the following points: one is the special joint crime subjective and objective unity. Joint crime requires more than two people have common intention, and has the common behavior, has the unified relationship between and two. Two is a common crime integrity. Joint crime is a whole more than two people in a common purpose under the control of crime formation, is not the simple addition of all human behavior. Judicial practice and criminal law theory cannot see the offender behavior in isolation. Three is the difference of common crime, common crime types of people. The different types of crime, the social harmfulness is different, such as the social harmfulness of social harmfulness of crime is usually heavier than the general group of joint crime. The common crime accomplice of more than two, but the role of the offender in the crime by different, different social harmfulness different common criminal behavior, which need to be treated differently.

Two, common crime and crime

As with single individual crime, joint crime is to conform to the crime constitution as the premise, namely, "more than two" must be consistent with the crime subject element person; "common purpose" must be deliberately with some subjective elements of crime; "common" must be consistent with some objective elements of crime behavior; so etc.. If one does not comply with the requisites to constitute a crime, it is not a crime, there is no common crime. So, from the criminal elements of the sense of common crime, and not what particularity; special joint crime, in various acts of intentional crime and the crime of "common" this point.

Based on the above reasons, the common crime should conform to the contract of a crime is the premise. However, if the same crime committed by two or more persons constitute, respectively with different plot of aggravating or mitigating circumstances, does not affect the establishment of joint crime. Or, as long as more than two people act in accordance with certain elements of crime, even to more than two people should be applicable to different legal punishment, also do not affect the establishment of joint crime. For example, a set has been robbed in the street, while B receive instigation after the burglary, robbery and the crime of intentional in behavior that is common, so the establishment of an accomplice in the crime of robbery, but for a and B are applicable statutory sentence is different.

If more than two people holding different deliberately jointly implemented certain behavior, only the property they have implemented the same part (or overlapping part) the establishment of common crime (part of common crime). For example, C invited Ding for his theft lookout, be the victim found C theft, C to resist arrest and to victims of violence. C acts constitute the crime of robbery is undoubtedly, but Ding ignorance, not rob intentionally, not likely to set up an accomplice in the crime of robbery. If you deny C and d the establishment of common crime, means of Ding behavior cannot be treated as a crime, its irrationality is obvious:: if C in the victim only the implementation of theft, Ding belonging to an accomplice, punished; and C in fact and the victim's implementation of the act of theft, Ding belonging to an accomplice, by punishment; and C reality is still in the victim's implementation of a more serious crime (lookout behavior fact stung treng also helped to robbery C play), Ding behavior but not a crime. This can hardly be accepted. The Ding behavior can not be separately identified as theft (can't think Ding is a single crime), because the Ding as separate theft processing requirements, Ding the implementation of theft crime, Dante did not carry out any act. If you think of D and C joint crime of robbery crime, is obviously inappropriate, because deliberately Ding not rob. In this case, should be identified Ding and C joint crime in the range of the crime of theft; if so, the Ding must be investigated for criminal responsibility of the crime of theft; but by C behavior formed robbery, so the C's behavior can only be identified as the crime of robbery. This is not the behavior of Ding conviction alone. In other words, the ding of the identified as acts of theft, is the Ding's act of theft. Furthermore, if the C, D completely according to the robbery and theft crime, without taking into account the ding in the theft of complicity, would not be recognized as an accessory Ding (because individual crime is indifferent to the main and accessory points), so the Ding not lighter, mitigated punishment or be exempted from punishment; and sure C and d the accomplice in the range of the crime of theft, Ding is an accessory of larceny, thus it shall be in accordance with the provisions of criminal law in general, a mitigated punishment or be exempted from punishment.

According to the above principle,AWith the intention to kill,BTo injure intentionally toCThe implementation of violence,AAndBThe establishment of common crime of intentional injury crime range, but because ofAWith the intention to kill, toAShould be dealt with crime of intentional killing. A deliberate, B kidnapped to illegal detention intentionally, to jointly implement the detention behavior of C, a and B are in the range of unlawful detention crime in joint crime, but because a has kidnapped in a deliberately, to kidnap crime.

The second section Conditions for the establishment of joint crime

The main conditions, a common crime

The subject of joint crime must be "more than two people". "Two" is the minimum requirement; as for the "more" to many people, there is no limit. Generally, more than two people here does not refer to all, but must conform to the crime subject of crime person, natural person, must be to the criminal legal age, has the ability of control and identification of people. Because the criminal law stipulated the unit can become the subject of some crime, the implementation of joint is more than two units and unit and natural person crime, may constitute a crime. But in the unit crime, the persons directly in charge and other persons directly responsible for the crime, and the unit itself is not joint crime.

Two, the subjective conditions of joint crime

The common crime must be "common purpose" crime, "intentionally" of course is the crime of intentionally; "common" not only has the "same" meaning, but also has the meaning of "consensus". The "common purpose" includes two aspects: one is the accomplice person has the same criminal intent, two has the meaning contact between the offender.

First of all, nature, common intent requirement of each joint offender knowingly common crimes harmful consequences to society, and hope or indulge harm results occur. The same intentional crime, accomplice liability refers to the person for the same offense or crime (with some common committed several crimes during) hold intentionally, and this only deliberately requirements in the range of criminal law does not require the same, the form and content of intentional exactly the same. Deliberately form, both parties have not direct intention, both sides are the indirect intentional and one for the direct intentional another party for indirect intention, as long as the intention of the same crime, common crime can be established. On the specific content of intentional, only requires the offender has the understanding of the factors of legal and will factor, even if the specific content of deliberately not completely the same, also be the establishment of common crime. For example, a crime and intentional instigation, in specific contents have differences, but does not affect the establishment of joint crime.

Secondly, the joint criminal intention required the accomplice subjective communicate, communicate with each other, are aware of their own is not in isolation to the crime, but in others the common crime.

Is worthy of study "one-sided accomplice". The one-sided accomplice in crime refers to the same person, one party is aware that he and others in the common crime, while the other did not recognize the others and their joint crime. The one-sided accomplice, there may be three kinds of circumstances: one is to carry out the one-sided, namely the party did not recognize the other party to implement the behavior. For example, B is the desire to rape behavior of C, a in B without knowing it, the use of violence will c wounded, B can implement smoothly rape behavior. Two is unilateral abettor abettor, is not aware of the instigated situation. For example, a B C and others wife adultery pictures and a gun on the table B, B found immediately after the intention to kill, kill the C. Three is unilateral help, or carrying out a party not aware of helping behavior of the other party. For example, a that B are chasing C, and C because of the enemy, they secretly set up obstacles will c stumble, so that B successfully killed and. How to deal with this, the Chinese and foreign criminal law theory has a great dispute. China's criminal law theories are certainly one-sided accomplice.

According to the "common purpose" of this condition, the following situations: (not the establishment of common crime1) of offense of joint negligence is not joint crime. Joint crime is more than a single criminal has a greater social harm, because it is the joint criminal intention into criminal activities based on the characteristics of criminal negligence; and determine the offense of joint negligence crime may not have required that the whole. Joint negligence crime, as long as according to the personal negligence crime conviction and sentencing can be respectively, need not to be punished as a joint crime. (2Intentional crime and negligent crime) behavior is not joint crime. If the duty police AWOL, major criminal escape. The former is negligence, the latter is intentional, objectively late have certain connection, but not the establishment of joint crime. Deliberately (fault) behavior and innocent action, not the establishment of common crime. (3At the same time make no crime). At the same time make is more than two persons at the same time in their violation of the same object, but without contact conditions between each other. Such as a, B two people while the store fire machine, agree without prior without previous consultation at the same time to fire place stolen goods. Because two people subjective without meaning contact, so it is not joint crime. (4) related criminal behavior has intentionally, not subjective contact each other, not the establishment of joint crime. For example, a first C home stolen TV, B to C home to steal a motorcycle. Two people in spite of the theft act the same, and it is the crime in C, but due to the lack of "common" deliberately, so no crime. (5Beyond the joint intention) outside of the crimes, not the common crime. For example, a B C abetting theft female financial, B in addition to implementation of theft, rape the C F, Jia unaware. The common crime a and B, two is the establishment of the crime of theft, but not the establishment of joint crime of rape crime. (6) non premeditated Russian harboring, cover, receiving, disposal of stolen goods, does not constitute a crime. But if the conspirators, is the establishment of common crime.

Objective three, joint crime

Joint crime is an intentional crime committed by two or more persons "common". Crime is the act that endangers society, therefore, the establishment of common crime of course requires a common behavior. "Action" refers to the crime; "common" refers not only to the common prisoners were implemented to belong to the same crime behavior, but also refers to the offender behavior in the common intent under the domination of mutual cooperation, complement each other, form as a whole. "Together" means that the offender is the integral part of the joint crime; the occurrence of the harmful results, the causal relationship between the offender behavior as a whole and its result, the causal relationship between the so sure the offender behavior and harm results.

Forms of joint crime may occur in three situations: one is common as, namely the accomplice behavior is action; two is not as common, namely the common criminal acts are not as; three is combined with the omission, namely the partial accomplice acts as, part common criminal behavior is not as.

Division of joint crime may be expressed as four conditions: one is the principal Act (ACT), the joint criminal intention content realization plays a key role; two is the organization behavior, organization, planning, command of common crime, the common criminal nature, scale, play a decisive role; three abetting acts, namely intent to cause others to criminal behavior, criminal intent to others the formation reason; four is to help behavior, which help the behavior of crime, its auxiliary effect on common crime.

The third section The form of common crime

A common crime, common crime and any necessary

A man in specific provisions of criminal law can be implemented separately by two or more persons jointly crime intentionally, either the common crime. Such as the crime of intentional homicide, arson, can be implemented by one person alone, can also be conducted jointly by two or more; when two or more persons jointly intentional murder or arson, either the common crime. Common crime in the general provisions of the criminal code is any common crime. For any crime, should be based on the specific provisions and general provisions on joint crime conviction and sentencing.

The criminal law provisions must be intentionally two more common crime, common crime is necessary. Such as the "criminal law" article317The provisions of the crime mob armed Jieyu, can not be implemented by an individual. On this kind of crime usually directly according to the provisions of the criminal law of the conviction and sentencing. The theory of criminal law will usually necessary joint crime is divided into two categories: the crime and the crime.

Generally speaking, the crime, refers to the existence of more than two people each other toward Germany acts as elements of crime. Bribery crime is the adaptation cases. The provisions of the criminal law on the crime can be divided into three types: one is the same and the legal penalty charges, such as the crime of bigamy; two is on both sides of the charges and the legal punishment are different, such as bribery and bribery bribery crime; three is the only punishment party behavior, such as selling obscene goods crime of trafficking in profit, only punishment people, not punishment buyers. In the third case, can not be directly according to the provisions of criminal law in general will be buyers handle as an accomplice. The provisions of the criminal law of the crime of selling pornographic articles for profit, of course, expect the behavior of buyers, since the criminal forces purchase behavior set penalties, it shows that the behavior is not a crime in criminal law, it can not be as an accomplice or help make that buyers. However, if the buyer had no intention of selling pornographic articles on human trafficking obscene goods, the possible establishment of abettor.

The crime refers to the most people carry out towards the same goal behavior for the elements of crime. Including the common crime and group crime in our criminal law. The former such as the "criminal law" article317The mob armed Jieyu crime, if the latter part120The organization, leadership,; in the terrorism crime. Among them, some provisions of the ringleaders, fixed active participants and other participants of the statutory punishment; some provisions only stipulated the ringleader and active participant in legal punishment. Because of the large multitude make design, only punishment several participation behavior of legislators, is to limit the scope of punishment; if according to the provisions of punishment other participation in general, is in violation of the legislation by the provincial.

Joint crime, the two conspirators and non premeditated.

Before starting to commit a crime, the offender has already formed the joint criminal intention, the implementation of the crime of planning or consulting, is a common crime premeditated. "Conspiracy" generally refers to two or more people to carry out specific crime, has assisted their meaning for the content of the proposed plan.

The formation of the intention of joint crime in the process just embarking on or committing a crime in joint crime, it is non premeditated. If the offender is just begun to implement the formation of joint criminal intention, and common crime, the accomplice complicity and per capita should undertake the liability forms. If the first act has been implemented in one part of the behavior, behavior in common crime means in practice or provide help, is called the common crime inheritance. After the behavior of their participation in the behaviour of the first act constitutes a crime. As for the participation behavior before the behavior whether to bear the criminal responsibility, it should distinguish between different treatment.

Three, the simple common crime and complicated joint crime

More than two people common intent crime, common crime is simple. The offender is principal (crime), so in theory of criminal law is also called the common principal offender (joint crime). For example, a and B, two people deliberately holding weapons kill C, the establishment of common crime of intentional homicide. The establishment of joint principal offender must have two basic conditions: one is the criminal intent, the two have in common is a fact.

Investigation on the simple common crime criminal responsibility should follow the following principles: (1Part of the implementation of the principle of full responsibility). (2The principle of distinction). To distinguish between the principal, accessory and coerced offender. (3) principle of culpability.

The common crime committed by two or more persons are implemented, organizing, abetting, helping equal time, is a complicated joint crime. In this case, there is crime, organization crime, abettor, accessory parts, their behavior and the concrete contents were different deliberately. According to the criminal law of the accomplice, should press it plays in the joint crime effect size, respectively.

Four, common crime and the special joint crime.

Joint offence refers to no common crime organization, including two types: one is two people can make, no organization, no ringleader, there is no common crime they may participate in the state at any time. Two is the implementation of joint crime by the ringleaders who organize, plan, command of all, namely, the common crime.

The special joint crime refers to the crime that group, common crime committed by three or more persons organized. To organize the implementation of crime called crime, crime group is more than three persons for the common crime is fixedly consisted of organized crime. A criminal group (usually has the following characteristics1The large number of). That is more than three people, two people are not enough to become the group. (2The more fixed). (3Objective to clear). In order to rent a repeated one or more crimes.

The judiciary is often used gangs corner in the absence of the nature and form of common crime. Therefore, for the gang crime, where consistent with the basic features of criminal group, shall be treated as a criminal group; not in conformity with the basic features of criminal groups, should according to the general treatment of common crime, and according to the facts and circumstances of the crime.